SZAGL v Minister for Immigration

[2004] FMCA 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAGL v MINISTER FOR IMMIGRATION [2004] FMCA 966

MIGRATION – Application for reinstatement of judicial review application – applicant failing to attend hearing – applicant claiming fear of the outcome kept him away – reinstatement application refused.

Migration Act 1958 (Cth), s.476

Applicant: SZAGL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG350 of 2003

Delivered on: 13 December 2004

Delivered at: Sydney

Hearing date: 13 December 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr I Muthalib
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The application for reinstatement is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG350 of 2003

SZAGL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 29 September 2004 seeking to reinstate a judicial review application filed on 14 March 2003.  The judicial review application was dismissed by me on 27 November 2003 when the applicant failed to appear.  The application for reinstatement was not served upon the Minister but Mr Muthalib appeared today for the Minister as he was aware of it.  Mr Muthalib was able to obtain a copy of the reinstatement application today and the Minister has not suffered any prejudice. 

2. The application for reinstatement is supported by written submissions filed on 9 December 2004.  In those submissions, the applicant refers to the fact that he is an Indian citizen and had made an application for a protection visa.  The applicant states that he is not familiar with legal procedures.  Initially, he thought that he would be able to represent himself but he now says that he needs the assistance of a lawyer.  He says that he cannot afford a lawyer.  He claims to have suffered serious harm in India.  He says that the RRT decision was badly constructed and contained a number of errors.  He says that the RRT did not apply properly the Refugees Convention.  He says that he will suffer harm if he is required to return to India.

3. The applicant also says that the RRT took into account an irrelevant consideration contrary to s.476(3)(d) of the Migration Act1958 (Cth). I understand that section has been repealed but the taking into account of an irrelevant consideration would be a ground of review under the general law. The applicant notes that the RRT did not regard him as having made a credible application. He refers to a statutory declaration supporting his claims. I asked the applicant for that document but he did not have it with him. The written submissions conclude with an invitation that I listen to the sound recording of the RRT hearing and also invite me to refer the applicant for assistance under the Minister's pilot advice scheme.

4. I asked the applicant why he did not attend court on 27 November 2003.  He initially said that he did not have a clear idea that he needed to attend on that day.  When I pressed him on this point he stated that he was aware of the need to attend but he was afraid to attend.  He told me that he was afraid that he would be unsuccessful.  I understand that the applicant may have been apprehensive about the outcome of his application.  On its face, the judicial review application did little or nothing to engage the jurisdiction of the Court.  It stated that the decision of the RRT was incorrect and that all of the material facts on the file had not been considered.  I asked the applicant what facts he says had not been considered by the RRT.  He was unable to identify any. 

5. I note that on 21 January 2003 the applicant declined an invitation to attend a hearing for the RRT.  He had been extended that invitation by letter dated 11 December 2002.  That letter warned the applicant that the RRT was unable to make a favourable decision on the material presented to it to that point.  Having declined the hearing invitation, it is hardly surprising that the RRT made a decision adverse to the applicant. 

6. In my view, the applicant has not advanced an explanation for his failure to attend court on 27 November 2003 that would support reinstatement of his application.  In addition, the application for judicial review does not raise any serious question to be tried.  The written submissions filed by the applicant add nothing to the judicial review application. 

7. No purpose would be served by granting the reinstatement application.  I will therefore dismiss it.

8. On the question of costs, Mr Muithalib seeks an order fixed in the sum of $500.  I am satisfied that costs of $500 have been reasonably and properly incurred on behalf of the Minister.  The applicant does not oppose an order for costs in principle but indicated that he would need some time to pay.  I will not require payment of costs by any particular date.

9. I order that the applicant pay the Minister's costs and disbursements of and incidental to the application filed on 29 September 2004, fixed in the sum of $500.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 December 2004