SZCBH v Minister for Immigration

[2005] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBH & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 329

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – non-compliance.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001 (Cth), Rr.13.03(2)(b), 31.02(a)

First Applicant: SZCBH

Second Applicant: SZCBI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2628 of 2003

Delivered on: 18 January 2005

Delivered at: Sydney South

Hearing date: 18 January 2005

Judgment of: Nicholls FM

REPRESENTATION

First Applicant: In Person

Second Applicant: No Appearance

Counsel for the Respondent: Mr Bell

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

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

2. That the applicants are to pay the respondent’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 432 of 2004

SZCBH

First Applicant

And

SZCBI

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

1. This is an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 October 2003 and handed down 18 November 2003. By that decision the Tribunal affirmed the decision of a delegate of the respondent Minister not to grant protection visas to the applicants.

2. The applicant husband and wife, both Indian nationals, filed an application for review of that decision on 2 December 2003. Only the applicant husband has made refugee claims. The applicant wife has applied as a member of a family unit. See Court Book 28.

3. At the Directions Hearing held on 28 April 2004, both applicants signed short minutes of orders, that subsequently become orders of the Court:

   “2. The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant to the Court by 29 July 2004.

   3. If an amended application is not filed in accordance with Order 2 above, the respondent may request that the registry list the matter in a non compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non compliance with a direction of the Court. Once listed the respondent to advise the applicant of the time, date and place of that listing.”

4. The applicants did not file any amended application by the due date. Nor have they filed any such application to date.

5. The respondent applied to have the matter placed in a non-compliance list of this Court. The respondent seeks that the application should be dismissed under Rule 13.03(2)(b) of the Federal Magistrates Court Rules because of the applicants’ failure to comply with the directions of the Court.

6. The respondent’s solicitor wrote to the applicants, at least, on two occasions – being on 31 May 2004 and 10 January 2005,  reminding the applicants of the consequences if they failed to file an amended application which complied with the Court order and that the  respondent Minister would make an application to have the application dismissed.

7. The applicants are not legally represented. The applicant husband has appeared at Court today and claimed that a further “submission” will be filed after getting legal advice. He confirmed he was also acting on behalf of his wife. The applicants have had the opportunity to access the Court’s Legal Advice Scheme and have had more than thirteen months to arrange their own independent legal advice if they so wished, from the date of making the application and eight and half months from the First Court Date.

8. The application does not contain any particularised grounds for judicial review. It consists of a narrative of the applicants’ complaint that the Tribunal has refused to accept that the applicants have a well founded fear of persecution. In relation to the reference to procedural error, no proper grounds are alleged and no particulars are provided.

9. The applicant husband told the Court today that he did receive adequate and proper notice from the Minister’s solicitor regarding the consequences of non-compliance with the Court’s orders. But sought more time to obtain legal advice. Despite the reminders, the applicants have elected to do essentially nothing to pursue their application for the past thirteen months

10. What the applicant husband has told the Court today is nowhere near satisfactory for the Court to grant additional time. The applicants were given adequate and proper notice of the consequences if they were to do nothing. They have done nothing to properly pursue their claim and the applicant husband could offer no explanation for this failure. Nor did the applicant husband put anything to me to show that he would do anything of relevant substance if given more time. All of these circumstances strongly support the orders that the Minister is seeking today. The application is dismissed pursuant to Rule 13.03(2)(b).

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: V Lee 

Date:  22 March 2005