SZBXM v Minister for Immigration

[2005] FMCA 788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXM v MINISTER FOR IMMIGRATION [2005] FMCA 788

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of application for non compliance with court order.

Applicant: SZBXM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2475 of 2003

Judgment of: Driver FM

Hearing date: 28 February 2005

Date of Last Submission: 3 June 2005

Delivered at: Sydney

Delivered on: 8 June 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms L Gazi
Australian Government Solicitor

ORDERS

1. The application is dismissed, pursuant to rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2475 of 2003

SZBXM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This matter came before me on 28 February 2005 on a motion by the Minister for the summary dismissal of the judicial review application, originally filed on 17 November 2003 and amended on 8 July 2004.  The motion asserted that the application disclosed no reasonable cause of action. 

2. The original application asserted jurisdictional error but provided no particulars.  The amended application was largely incoherent but asserted that the Refugee Review Tribunal (“the RRT”) decision was irrational.  The applicant also promised more details following his participation in the Minister’s pilot advice scheme. 

3. In opposition to the Minister’s motion the applicant filed written submissions on 28 February 2005.  In those written submissions the applicant asserted actual bias on the part of the presiding member.  In argument it transpired that the applicant was really asserting procedural unfairness.  I decided to dismiss the Minister’s motion.  In doing so, I said the following:

   I am going to dismiss the Minister's motion.  I am satisfied that on its face the motion would have succeeded but for the issues which the applicant has raised orally this afternoon.  The motion for summary dismissal was properly brought because the amended application filed on 8 July 2004 could not possibly succeed.

   The applicant was required by order 2 made by consent on

   
   

   7 April 2004 to file and serve an amended and particularised application and any affidavit material he wished to rely upon by

   
   

   8 July 2004.  He filed an amended and particularised application but no affidavit.  The grounds advanced in the amended application are nonsense and as I have already noted could not possibly succeed.  In that respect I agree with Mr Markus' submissions.

   However, the applicant has raised three issues orally today.  Those are all issues of procedural fairness.  The applicant asserts that he sought to explain the credibility of a letter he relied upon dated 25 August 2002.  According to page 10 of the RRT decision the applicant said nothing.  The applicant asserts that he said a great deal.

   Secondly, the applicant asserts that the Tribunal failed to take proper account of an accident that he had shortly before the Tribunal.  He refers to a discussion with the presiding member at the hearing about this. 

   Thirdly, the applicant asserts that the presiding member refused to accept the tender of a videotape which he says supported his claims of political activity.  All of these things could be verified by reference to a transcript of the hearing before the RRT.  The applicant tells me that he is in the course of having a transcript prepared.  The applicant says that he is also waiting for the receipt of money from India that will enable him to obtain legal representation.  This leads me to the view that notwithstanding the excessive delay I should give the applicant the opportunity to support the claims he has made today.  The applicant has wasted the time of the Minister and the court by waiting until today to raise claims of significance.

He should, accordingly, pay the Minister's costs thrown away by reason of the unsatisfactory way in which he has conducted the proceedings.  He should also pay those costs within a certain time given that he is anticipating the receipt of funds from India. 

1. I struck out the then existing grounds of review as disclosing no reasonable cause of action.  I permitted the applicant to file and serve a further amended application by 31 March 2005 addressing the procedural fairness concerns he has expressed orally.  I required the applicant to pay the Minister’s costs thrown away within 90 days, taking into account that the earlier application and amended application did not reflect the applicant’s real concerns and that the Minister’s costs to that point had been incurred unnecessarily. 

2. The applicant asserted that he could establish his allegations by reference to the transcript of the RRT hearing.  I required the applicant to file and serve an affidavit annexing the transcript by 31 March 2005. 

3. I also made the following order:

   If the applicant fails to comply with either the order for costs, the order for the further amended application or the order for an affidavit annexing the transcript of the Tribunal hearing within the required time, the Minister has leave to apply for an order in chambers dismissing the amended application without further reference to the applicant.

   I satisfied myself that the applicant understood this order.  In particular, I satisfied myself that the applicant understood that if he failed to comply with his obligations under the other orders, his judicial review application could be dismissed without a further hearing. 

4. On 3 June 2005 the Minister sought dismissal of the judicial review application by reason of non compliance with the costs order.  That request is supported by the affidavit of Laura Gazi made on 3 June 2005.  I accept from that affidavit that the applicant has failed to comply with the costs order I made on 28 February 2005.  That in itself supports the dismissal of the judicial review application but I would be reluctant to take that step if the applicant had advanced a serious issue to be tried. 

5. The applicant filed a further amended application and supporting affidavit on 1 April 2005.  The further amended application asserts actual bias and procedural unfairness.  Particulars are provided but they do not support the contention of actual bias.  With one exception they are silent as to the matters raised orally by the applicant on 28 February 2005.  The affidavit annexes a purported extract from the transcript of the RRT hearing.  The purported extract is relatively brief and I do not know if it is accurate.  If it is accurate, there is nothing in it to support the allegations of procedural unfairness made on 28 February 2005 or in the further amended application.  Neither is there anything in the purported transcript to support the allegation of actual bias in the further amended application.  In the circumstances, I form the view that the applicant has not raised a serious question to be tried in the further amended application and that no injustice would result from the dismissal of the application for non compliance with my earlier costs order. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 June 2005