S1845 of 2003 v Minister for Immigration
[2004] FMCA 1099
•3 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1845 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1099 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – non-compliance. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001 (Cth), Rr.13.03(2)(b), 31.02(a)
| Applicant: | APPLICANT S1845 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1657 of 2004 |
| Delivered on: | 3 December 2004 |
| Delivered at: | Sydney South |
| Hearing date: | 3 December 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001.
That the applicant pay the respondent’s costs fixed in the amount of $750.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1657 of 2004
| APPLICANT S1845 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
I have before me an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 February 1999. By that decision the Tribunal affirmed the decision of a delegate of the respondent Minister not to grant a protection visa to the applicant. The applicant filed an application for review of that decision in this Court on 31 May 2004.
At a Directions Hearing on 9 September 2004 before Registrar McIllhatton, the applicant signed short minutes of orders, that subsequently become orders of the Court, relevantly:
“2. The applicant file and serve an amended application setting out in full particulars of the grounds relied upon together with any affidavit material to be relied upon on or before 8 November 2004.
3. If an amended application is not filed in accordance with Order 2 above, the respondent may request that the Registry list the matter in a non-compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court. Once listed the respondent is to advise the applicant of the time, date and place of that listing.”
The applicant did not file any amended application by the due date.
The respondent applied to have the matter placed in a non-compliance list of this Court. The respondent seeks that the application should be dismissed under Rule 13.03(2)(b) of the Federal Magistrates Court Rules because of the applicant’s failure to comply with the directions of the Court.
The applicant’s husband applied to the respondent’s Department for a protection visa on 6 January 1997. The applicant and their three children were included in his application as family members. The application was refused on 21 June 1997 and the applicant’s husband sought review of that decision on 22 July 1997. On 15 February 1999 the Tribunal affirmed the delegate’s decision. The applicant’s husband, the applicant and two of their children sought judicial review of that decision in the Federal Court of Australia, and on 10 February 2000, Justice Mansfield dismissed this application. [Court Book 113 to 125]
The application to this Court contains no grounds for judicial review. The applicant has also submitted a number of documents in support of her application. These are marked “1, 2, 3, 4” – [Letter to the Court from the applicant; Medical certificates RE: Mr Harbans Singh; Letter from Ward Maxwell & Co dated 7 May 2004; and Photocopies of passports.] Essentially, the applicant is asking the Court to let her, her husband and her children remain in Australia due to the sad circumstances relating to her husband’s highly unfortunate situation arising out of a severe medical disability. There is no real challenge to the Tribunal’s decision.
The applicant is not legally represented before me today. The applicant told the Court today that she was told that there was an opportunity to participate in the Court’s Legal Advice Scheme, but was subsequently not provided with a lawyer. The applicant does not appear to be eligible to participate in the Legal Advice Scheme because of her previous proceedings in the Federal Court. In addition to the decision of Mansfield, J, from the documents submitted by the applicant, in particular “3”, it appears the applicant’s husband was part of a class action before the High Court, that this matter was remitted to the Federal Court and subsequently dismissed by Justice Emmett on
30 April 2004. The applicants were assisted by a migration agent in the application before the Tribunal, were legally represented before Mansfield, J and were represented in the matter remitted from the High Court and subsequently dealt with by Emmett, J.
Ms Hanson counsel for the respondent Minister submitted that there are no legal grounds of review set out in the application before me. The matters set out in the application appeared to be by way of a letter, marked for identification as “1”, requesting the Court to grant humanitarian consideration in light of the applicant’s situation. The application does not contain any particularised grounds for judicial review.
The Court acknowledges the sad circumstances of the applicant and in particular that over 2 years ago, the applicant’s husband suffered a severe life threatening head injury which has left him profoundly disabled. He has a severe cognitive disability, he is unable to walk or move independently. He is in a nursing home and needs help with the most basic of needs. The applicant also has three children to look after, as well as her husband. [From documents 1 and 2 submitted by the applicant]. I explained to the applicant however, that the role of this Court is to review the Tribunal’s decision to see whether there has been, simply put, some error of law. The Court cannot make a visa decision based on humanitarian grounds.
It was made clear to the applicant at the Direction Hearing that an amended application would need to be filed. This was not done by the applicant. The applicant could provide no satisfactory explanation for this failure. The Tribunal’s decision relating to the applicant and her husband has been before the Courts previously. The applicant is not now seeking judicial review, but permission for her husband, herself and their children to remain in Australia. I could not see any utility, in these circumstances, in giving her more time to comply with the Court’s orders. Therefore, the application is dismissed pursuant to Rule 13.03(2)(b) of Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: V Lee
Date: 30 March 2005
0
0
0