SZBTQ v Minister for Immigration

[2005] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBTQ v MINISTER FOR IMMIGRATION [2005] FMCA 184

MIGRATION – Review of Refugee Review Tribunal decision – amended application not disclosing any reasonable basis for the action – application summarily dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZBTQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2297 of 2003

Judgment of: Driver FM

Hearing date: 28 February 2005

Delivered at: Sydney

Delivered on: 28 February 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr A Bockwinkel
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2297 of 2003

SZBTQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a motion of which notice was given on 1 December 2004 seeking the summary dismissal of a judicial review application filed on 17 May 2004. The judicial review application is an amended one, the original application having been filed on 29 October 2003. The motion asserts that the amended application discloses no reasonable cause of action and accordingly that it should be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The motion is supported by the affidavit of Anton Bockwinkel made on 30 November 2004 and filed the following day. That affidavit sets out the relevant procedural background to the matter and annexes documents relevant to the RRT decision.

2. The original application for judicial review was obviously defective in that it contained no grounds at all.  A directions hearing was conducted before Registrar Kavallaris on 11 March 2004 at which the applicant consented to an order that he file and serve any amended application and any evidence by 30 June 2004.  The amended application was filed in that time.  The applicant has chosen not to file any affidavit evidence.

3. While the amended application contains what are asserted to be grounds of review they are not grounds of review that assist the applicant.  The first ground asserts procedural error without asserting jurisdictional error.  The asserted error is a failure to provide a book of relevant documents by the Minister.  I note that a book of relevant documents was filed on 23 March 2004 and should have been available to the applicant for some time.  Even if there was a delay in making the book of relevant documents available to the applicant it does not point to any jurisdictional error on the part of the RRT.  Secondly, the amended application asserts jurisdictional error but the particulars given are merely a challenge to the merits of the RRT decision.  No legal error going to the jurisdiction of the RRT is asserted.  From my reading of the RRT decision made on 1 September 2003 there was no jurisdictional error.  It would follow that the decision of the RRT is a privative clause decision and on that basis the amended application is bound to fail.  In the circumstances, I will grant the relief sought in the Minister's motion. 

4. I will dismiss the applicant's judicial review application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.

5. On the question of costs, the application having been dismissed, costs should follow the event.  Mr Bockwinkel seeks an order for costs fixed in the sum of $3,000.  The applicant did not wish to be heard on costs.  I am satisfied that costs of $3,000 have been reasonably and properly incurred in the proceedings to this point when assessed on a party and party basis.  I had regard to the fact that two hearings have occurred, a book of relevant documents has been prepared and the Minister's lawyers have prepared a reasonably lengthy affidavit with annexures in support of the Minister's motion.

6. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  9 March 2005