SZBCX v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCX v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 912

MIGRATION – Application to set aside consent orders dismissing application – where applicant blames his migration agent – where court requires department to produce files – where claims are not substantiated – where original claims before Tribunal do not appear to be within the convention.

Migration Act 1958, s.48B
Federal Magistrates Court Rules 2001

B41 of 2003 [2004] FCA 30

Applicant: SZBCX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL (ROQUE RAYMUNDO)

File Number: SYG1540 of 2003

Judgment of: Raphael FM

Hearing date: 21 June 2005

Date of Last Submission: 21 June 2005

Delivered at: Sydney

Delivered on: 21 June 2005

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $3,500 pursuant to Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1540 of 2003

SZBCX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL (ROQUE RAYMUNDO)

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed on 7 April 2005 by the applicant to set aside consent orders dismissing an application for judicial review of a decision made by the Refugee Review Tribunal on 14 October 1999.  The consent orders, which were signed by a solicitor acting on behalf of the applicant on 2 April 2004, were entered as orders of this Court on 8 April 2004.

2. The applicant then waited a further year before making the application which is currently before me.  The basis of that application in short, was that he had been misrepresented by his solicitor.  It should be pointed out that this solicitor, who is also a migration agent, appeared on the applicant's behalf at the time his application was before the Refugee Review Tribunal.  The applicant made certain highly prejudicial comments about the solicitor/migration agent which, had they been true or had any evidence of the possible truth of them been provided, would have caused the Court and no doubt, the Department serious concern.

3. I therefore adjourned the first hearing of the application and required the applicant to put on an affidavit.  This he did on 24 May 2004.  In that affidavit, he states at paragraph 11:

   “My adviser informed the Tribunal on 20 September 1999 that I did not wish to give evidence.  This is contrary to my intention as it can be evidenced by the attached file note as well as  response to hearing offer sheet which is solid evidence that it was my intention to give oral evidence and to attend the hearing because my application is genuine and my future depends on the outcome of such application.”

4. This paragraph is in fact the most serious criticism levelled at the solicitor.  The affidavit does exhibit a file note which seems to indicate that the applicant…