SZBGT v Minister for Immigration (No.2)
[2005] FMCA 855
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBGT v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 855 |
| MIGRATION – Where the applicant seeks a declaration that a prior judgment is invalid and contrary to law – where the applicant seeks other orders that the court is unlikely to make – where the document containing the application is poorly constructed. |
| Federal Magistrates Court Rules 2001 |
| SZBGT v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 371 |
| Applicant: | SZBGT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1669 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 June 2005 |
| Date of Last Submission: | 17 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant pay the respondent’s costs assessed in the sum of $1000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1669 of 2003
| SZBGT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 16 March 2005 I had before me a substantive application for review of a decision of the Refugee Review Tribunal. I dismissed that application because of the non-attendance of the applicant after a solicitor had appeared on his behalf seeking an adjournment. My reasons for judgment, which are found at SZBGT v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 371, explain both the circumstances of the application and the reasons for my decision. At [5] I said:
“Mr Singh [the solicitor] then withdrew. He had not filed an appearance and I believe he was entitled to take that step. This left the applicant unrepresented although Mr Singh remains in court. The applicant has not appeared and I am therefore entitled to and will dismiss this application pursuant to part 13 rule 13.03A(c) of the Federal Magistrates Court Rules. In doing so, and with the knowledge of the possibility of an application to restore the matter, I would make these comments concerning the applicant's prospects of success.”
I then set out in some detail my reasons for believing that the applicant's case had very little prospect of succeeding. A copy of the judgment was sent to the applicant. On 25 May 2005 there was filed in the registry by fax an original application and an affidavit. I am told by the applicant that this was prepared by Mr Jack Singh, the solicitor who had previously appeared for him. Mr Singh's name appears on the affidavit and therefore I accept the statement of the applicant.
The form of application is an embarrassment. It seeks in this court a declaration that my decision of 13 March was “invalid and contrary to law” and an order that I “give further consideration according to law to all matters in which the decision relates subject to such direction as the court thinks fit”. It seeks injunctions “restraining the respondent from removing the applicant from Australia” and an order that the applicant “be allowed a full time work permission along with a tax file number and Medicare card”. These are not orders this court would be likely to make.
The affidavit is even more embarrassing. It indicates that the applicant:
“Would like to make an appeal from the single Magistrate of the Federal Magistrates Court, Sydney, Australia to the Full Federal Magistrates Court of Australia, Sydney on the following grounds:
(1) The Honourable Magistrate did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of a decision.
(2) The Honourable Magistrate did not have jurisdiction to make the decision.
(3) The decision was not authorised by the Act, Regulations or regulations made under the Act.
(4) The decision was an improper exercise of the power conferred by the Act or the Regulations.
(5) The decision involved an error of law being an [two unreadable words] interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. I can only communicate in Punjabi language.”
It seems to me that if this document was written by Mr Singh the solicitor it is a totally inappropriate document for what should have been an application under section 16.05 of the Federal Magistrates Court Rules to vacate my previous orders.
In the event I have taken this application to be an application under part 16 rule 16.05 Federal Magistrates Court Rules. I decline to grant the application. Nothing the applicant has told me has provided me with any comfort that he would be able to make out a case of jurisdictional error on the part of the Tribunal. Nothing the applicant has said explains his failure to appear in court or his failure to properly instruct his solicitor. The applicant blames his solicitor. He claims he paid him a large sum of money and did not get satisfaction. This may or may not be the case; but whatever the situation it does not impinge upon the question of the jurisdictional validity of the Tribunal's decision.
I have already expressed my views on that and nothing I have heard today would make me change them. I therefore decline the application to vacate my orders and dismiss the application filed on 25 May.
I order that the applicant pay the respondent's costs which I assess in the sum of $1000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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