SZBWW v Minister for Immigration
[2005] FMCA 301
•3 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWW v MINISTER FOR IMMIGRATION | [2005] FMCA 301 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal – application for summary dismissal. PRACTICE & PROCEDURE – Summary dismissal – where applicant fails to appear – ex parte – whether it is appropriate to deal with an application for summary dismissal on an ex parte basis instead of dismissing the substantive application for failure to appear. |
MIEA v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | SZBWW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2436 of 2003 |
| Delivered on: | 3 March 2005 |
| Delivered at: | Sydney South |
| Hearing date: | 3 March 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Ms Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
I grant leave to proceed ex parte.
The application is summarily dismissed pursuant to Rule 13.10 as it does not disclose any reasonable cause of action.
The application is dismissed pursuant to Rule 13.03A for failure of the applicant to attend on the hearing date, not being the first Court date.
The applicant is to pay the respondent's costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2436 of 2003
| SZBWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal made on 29 September 2003 and handed down on 22 October 2003. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The substantive application for review was filed by the Applicant on 12 November 2003. The application before the Court today is an application for summary dismissal brought by the Respondent. The Respondent submits that no reasonable cause of action is disclosed in the substantive application.
The Applicant has not attended Court today. The application was listed for hearing today before me at 10.15 a.m. The Applicant did not appear when he was called. I stood the matter down and the Applicant was again called at 10.48 a.m. The Applicant did not appear.
Ms Nanson, of the Respondent's solicitors, sought and obtained leave to file in Court an affidavit dated 2 March 2005 in which she sets out the steps taken by the Respondent to advise the Applicant of the information necessary for the Applicant to know for these proceedings. On 10 March 2004 the Respondent's solicitors served a bundle of relevant documents on the Applicant by ordinary prepaid post at his address for service. On 16 March 2004 the Respondent's solicitors sent a further bundle of relevant documents to the Applicant at that same address.
On 31 March 2004 the matter came before a Registrar of the Court. The Applicant appeared together with an interpreter. The Registrar listed the matter for final hearing at this Court on 24 May 2005 and the Registrar made certain directions.
A relevant direction was that the Applicant should file and serve any amended application and any evidence upon which he proposed to rely on or before 5 May 2004. No such documents have been filed.
The Applicant, being unrepresented, was given the opportunity to obtain pro bono legal advice and he was referred to a Mr Michael McAuley of counsel of Henry Parkes Chambers. On 26 July 2004 Mr McAuley wrote to the Registrar noting that the Applicant had failed to attend a conference arranged with him for 29 March 2004. Mr McAuley in the circumstances intended to take no further action.
The Respondent's solicitors wrote to the Applicant on 17 November 2004 reminding him of the order to file and serve the amended application on or before 5 May. The letter went on to say:
If I do not hear from you within 14 days from the date of this letter please note an application will be made to the Federal Magistrates Court for orders that your application be dismissed with costs.
On 8 December 2004 the Respondent solicitors again wrote to the Applicant. They advised him that the matter was listed before me at 10.15 today. The letter set out the number of the Court, the floor of the building upon which the courtroom is found and the address of the building, and the letter enclosed a map showing the location of the Court. The letter went on to say:
On that day orders will be sought for summary dismissal of your application with costs. Please note should you fail to appear these orders will be sought in your absence and without further notice to you.
Despite there being no response to that, the Respondent's solicitor again wrote to the Applicant on 28 February. That letter reminded the Applicant that the matter was listed for hearing before me at 10.15 today. The letter went on to remind the Applicant of the number of the Court, floor of the building and the address. The letter went on to remind the Applicant that there would be an application for orders for summary dismissal of the application with costs.
I am satisfied that the Applicant has been more than adequately informed of the proceedings and has not appeared. This is an appropriate matter for an application for summary dismissal to proceed today on an ex parte basis, and I have heard the submissions by Ms Nanson to that effect.
The application sets out a claim on page 1 saying:
The Tribunal underestimated the degree of risk and harm that I faced in India due to my father's political opinion and my imputed political opinion because of the family's membership with the Indian Congress Party.
Quite clearly this is a reference to the Applicant's complaint about the factual nature of the Tribunal's decision. On page 2 where an Applicant is required to set out three grounds for the application, he has handwritten three grounds which are all submissions of fact. Ground 1 begins:
There is no adequate State protection available to me if I go back to India.
Ground 2 begins:
I would be persecuted or killed by the members of the Telugdesam Party TDP because of my imputed political opinion and subsequently my membership of the Indian Congress Party of which my father was an active office bearer.
Ground 3 begins:
Relocation is also unreasonable in my circumstance given that the TDP is powerful and could locate me if I go to anywhere in India.
It can clearly be seen that the application relates to the merits of the decision. The application does not anywhere, as Ms Nanson quite properly suggested, refer to any error of law on the part of the Tribunal decision. I have perused the decision of the Tribunal. I note that the Applicant attended and gave oral evidence on Wednesday, 17 September.
After considering the evidence the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the refugee's protocol and the Tribunal affirmed the decision not to grant a protection visa.
I have detected no error of law and it is well known from decisions such as Wu Shan Liang and others that on a judicial review there is no review of the merits. The findings of fact are the province of the Tribunal. The Court does not conduct a re-hearing on the merits of the case.
It is clear to me that the application discloses no reasonable cause of action. It is appropriate, therefore, that I should make an order for summary dismissal. I also note that there has been no appearance by the Applicant and that of itself is a ground for dismissal.
This is a matter where costs should follow the event. I am satisfied that the Applicant has been well and truly advised of the liability for costs in these circumstances.
I require a transcript of my reasons for this decision. The application is otherwise removed from the list of cases waiting finalisation.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 17 March 2005
0
0
0