SZCAX v Minister for Immigration
[2005] FMCA 199
•23 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAX v MINISTER FOR IMMIGRATION | [2005] FMCA 199 |
| MIGRATION – Application for review of Registrar’s decision to dismiss – whether the applicant can establish utility in allowing reinstatement of proceedings – whether applicant has reasons for non-attendance. |
| Federal Magistrates Court Rules 2001 Migration Act 1958 (Cth), s.476 |
| Applicant: | SZCAX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2613 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 February 2005 |
| Date of Last Submission: | 23 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2005 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs assessed in the sum of $1,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2613 of 2003
| SZCAX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the applicant in the substantive proceedings to set aside an order made by Registrar Hedge on 18 January 2005 dismissing his applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) on the grounds of his non-attendance at a directions hearing.
It seems to me that as this decision was made by the Registrar the proper course of action for me to take is to consider this application as a request to review the Registrar's decision under Part 20 Division 20.2 Rules 20.02 and 20.03.
The applicant states in his affidavit in support of the application that due to his inability to read and write English he misunderstood and got confused with the dates. When he appeared before me today the applicant confirmed that he had been present at an earlier directions hearing which took place on 22 April 2004 and that there was present at that hearing a Hindi interpreter who assisted him. Because of the possibility of some contest as to exactly what occurred at that directions hearing I requested that the applicant give evidence which he did. Under cross-examination the applicant confirmed that he had had the assistance of a Hindi interpreter and that the time and date of the next directions hearing was clearly indicated as order 4 of the orders of 22 April 2004 a copy of which he signed and a copy of which he agreed was given to him. I am satisfied the applicant was well aware of the hearing date of 18 January 2005 and that his non‑attendance was not due to any fault of the court processes.
I have made it clear in the past that I have my doubts as to the efficacy of interlocutory processes which purport to speed up the decision making in these matters. Invariably all that occurs is that interlocutory orders are made that are then appealed, sometimes successfully thus prolonging the procedures, when in fact in cases such as the one before me the whole matter could have been dealt with in half-an-hour.
In coming to my conclusions in relation to this application I have taken into account the fact that the applicant did not attend before the Tribunal and that he so advised the Tribunal some five days before the hearing. The reasons of the Tribunal are concise and are effectively contained in one paragraph which I set out below:
“I find the applicant's claims to be vague, general and lacking in support of evidence. Furthermore, the applicant has not provided any evidence corroborative of his claims. He has not provided any specific details relating to the alleged attacks, his involvement in student union activities or his father's death. In the absence of any supportive material and given the fact that the Tribunal was not able to test the credibility of the applicant as he did not attend the hearing, I cannot be satisfied that the applicant's father was killed by Hindu extremists, nor that he has personally suffered any ill-treatment by Hindus. I cannot be satisfied that he has suffered any of the claimed harm or that there is a real chance of such treatment in the future.”
It seems to me that given the applicant's failure to attend and his failure to provide the corroborative evidence which he states in his statement of 5 February 2003 that he has attached, namely photographs, the Tribunal was entitled to express its lack of satisfaction in the way that it did. When this is combined with the fact that the application itself appears to be based upon complaints that the Tribunal did not act within the meanings of s.476 of the Migration Act some years after that section had been repealed and replaced that there would be no utility in allowing the applicant an opportunity to put that case before the court.
Indeed, the applicant made no reference to the merits of this case or the utility in reinstating it and as he has given no proper explanation for his failure to attend, it is in my view in the interests of justice and in all probability of the applicant himself, that these proceedings be brought to an end as soon as possible.
I dismiss the application for review, the substantive application stands dismissed. I order that the applicant pay the respondent's costs of this application which I assess in the sum of $1,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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