SZCJO v Minister for Immigration

[2004] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJO v MINISTER FOR IMMIGRATION [2004] FMCA 996

MIGRATION – Respondent’s application for summary disposal – non compliance with court order – substantial compliance by unrepresented applicant sufficient.

Applicant: SZCJO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG9 of 2004

Delivered on: 17 December 2004

Delivered at: Sydney

Application decided on written submissions

Judgment of: Driver FM

ORDERS

(1)The Minister’s application for an order in chambers dismissing the judicial review application for non compliance with order 1 made by the Court on 8 November 2004 is dismissed.

(2)Ground 2 of the amended application filed on 15 November 2004 is struck out for non compliance with order 1 made by the Court on 8 November 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG9 of 2004

SZCJO

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This interlocutory judgment relates to an application for judicial review.  The application was filed on 5 January 2004.  It was defective in that it failed to assert any jurisdictional error.

2. The matter came before me on 8 November 2004 when I made the following orders:

   (1)That the applicant must file and serve on the respondent an amended application on or before 22 November 2004 containing at least one asserted jurisdictional error and giving particulars of each jurisdictional error alleged.

   (2)That if no further application is filed and served on the respondent which asserts at least one jurisdictional error and provides particulars of each jurisdictional error alleged on or before 22 November 2004, the respondent may apply for an order in chambers dismissing the application with costs for non compliance with the Court’s orders or on the basis that no reasonable cause of action is disclosed, without further reference to the applicant.

3. By letter dated 6 December 2004 received by fax on 9 December 2004 the Minister’s solicitors seek a dismissal order pursuant to order 2.  This is on the basis that although an amended application was filed on 15 November 2004, it is the Minister’s solicitors’ view the amended application does not satisfy the requirements of order 1 made by me on 8 November 2004.

Submissions

1. The solicitors state that the amended application simply quotes from part of the Refugee Review Tribunal’s (“the Tribunal’s”) ultimate finding on page 6 of the Tribunal’s reasons for decision, and claims that the applicant feared “political discrimination”.  The solicitors submit that the amended application does not articulate any meaningful particularised jurisdictional error.

2. I have not sought any submissions from the applicant.  That is because the orders I made on 8 November 2004 were made on the basis that if no application required by order 1 was filed by the due date, the respondent Minister would seek a dismissal order in chambers without further reference to the applicant.

Reasoning

1. The amended application contains the following grounds:

   1.The Tribunal failed to consider the applicant’s case in light of the United Nations Convention 1951.  The Tribunal was influenced significantly, about the applicant’s attending the Tribunal.

   2.The Tribunal finding [was] based on irrelevant issues which raised the Tribunal’s decision extended [beyond] its limit of jurisdiction thus falls into jurisdictional error.

   3.The Tribunal made a jurisdictional error in commenting that the “applicant has been subject to personal threats or that he has well founded fear of persecution within the meaning of the Convention”.  In fact, the applicant’s fear came from political discrimination.

2. Ground 2 of the application is an unparticularised assertion that the Tribunal took into account irrelevant considerations.  In the absence of particulars the ground is meaningless and I strike it out. 

3. Grounds 1 and 3 assert jurisdictional error and are to some extent particularised.    In my view, those grounds substantially satisfy the requirements of order 1 made by me on 8 November 2004.  The applicant is self represented.  Accordingly, I will not dismiss the application as the Minister requests.  I make no comment on the prospects of success of the application.  It is open to the Minister to move for summary dismissal of the application if the Minister considers that the application fails to disclose a reasonable cause of action.

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

Associate: 

Date:  17 December 2004