SZCAF v Minister for Immigration

[2005] FMCA 327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAF v MINISTER FOR IMMIGRATION [2005] FMCA 327

MIGRATION – Non-compliance.

Migration Act 1958
Federal Magistrates Court Rules 2001, Rules 13.03(2)(b), 21.02(2)(a)

Applicant: SZCAF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2585 of 2003

Judgment of: Nicholls FM

Hearing date: 18 January 2005

Delivered at: Sydney

Delivered on: 18 January 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms B. Markovic

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules.

2. Applicant to pay respondent’s costs set at the amount of $2000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2585 of 2003

SZCAF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application to the Court filed on 27 November 2003 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 October 2003 affirming the decision to refuse the applicant a protection visa.  An error of law is the ground put forward.  There do not appear to be complete particulars and, in fact, it seems the claims are a repeat of some of the arguments and matters that would have been before the Tribunal. 

2. Far more relevantly for the respondent Minister’s application for dismissal before me today, I have short minutes of order signed by the applicant on 21 April 2004 at the first Court date [These subsequently becoming orders of the Court]. On that day the applicant was assisted by an interpreter in the Mandarin language.

   “2. The Applicant file and serve an amended application giving particulars of each ground of review relied upon by 30 June 2004. 

   “3. After the date for the filing of an amended application, the Respondent may file a summary dismissal application which is to be given a return date by the registry upon filing.” 

3. There is nothing in the Court file to indicate anything in this regard has been filed by the applicant.  I also note that the applicant has been referred to a lawyer under the Court’s Legal Advice Scheme.

4. [Before me today ] The applicant said he needed some documents from China. “It’s very difficult for me to obtain such a document because no post office is open while I need those amended application.”  When asked for examples the best the applicant could say was that these documents were “some evidence certifying that I was persecuted over there.”

   I explained that he misunderstood what this Court could do for him and what the Court does.  [I put to the applicant] The kind of evidence that [it appeared] he was talking about is evidence that was relevant to the consideration by the Tribunal.  The Tribunal and the Court have two different tasks.  The Tribunal, simply put, looks at your claim to be a refugee.  This Court does not do that.  What this Court does is to look to see whether the Tribunal has made a legal mistake, and again I am putting it very simply.  So the matters that are relevant before this Court are the matters or the evidence that is going to show that the Tribunal made a legal mistake.  So the kind of evidence that I think you are referring to appears to be, even though you have been unable to give me an example, but it appears, that it is relevant to the Tribunal decision and you should have put that before the Tribunal.

5. The application to this Court is not particularised.  The Court made orders on 21 April 2004 that the applicant file an amended application , giving full particulars, by 30 June 2004.  By 18 January 2005, no amended application has been filed.  The applicant has had the opportunity to access the Court’s Legal Advice Scheme and despite his claim that he received no advice of any such referral, the Court sent a letter to that effect to the address provided by the applicant and there is nothing before me to show that the letter was undeliverable.  The applicant has not provided any acceptable explanation in the circumstances for the failure to comply with the Court order for well over eight months.  Nor could he provide any real argument to create an expectation by the Court that he could comply with the Order if given more time.  The application is therefore dismissed.

   For all these reasons this application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  27 April 2005