SZCLQ v Minister for Immigration
[2004] FMCA 426
•21 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLQ v MINISTER FOR IMMIGRATION | [2004] FMCA 426 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application summarily dismissed by a registrar due to non appearance by the applicant at a directions hearing – whether the registrar’s orders should be set aside – further pursuit of the application for judicial review futile – motion dismissed. |
| Applicant: | SZCLQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ77 of 2004 |
| Delivered on: | 21 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 21 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr R White Sparke Helmore |
ORDERS
The motion filed on 10 May 2004 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the notice of motion, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ77 of 2004
| SZCLQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of motion and supporting affidavit filed on 10 May 2004. The motion seeks to set aside an order made by Registrar Hedge on 16 April 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 21 November 2003 and handed down on 17 December 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant's motion to set aside the Registrar's dismissal order is made on the basis that she cannot read English and did not understand when she needed to attend Court. The applicant concedes that she did not attend Court on 16 April 2004. The motion is opposed by the Minister who relies upon an affidavit by Michael McCrudden made on 7 April 2004. In that affidavit Mr McCrudden deposes as to difficulties in communicating with the applicant at her address for service shown in her application for judicial review. The applicant had given an address for service in Fairfield. It appears that she did not live there and that she formerly lived in Wollongong. She tells me that she now lives in Elizabeth Bay.
Mr McCrudden deposes that on 2 April 2004 at approximately 2.15pm he attended the scheduled directions hearing before Registrar Hedge of this Court on the return date of the application. There was no appearance by the applicant at this directions hearing. The matter was stood over for a further directions hearing at 2.15pm on 16 April 2004. Correspondence advising the applicant of the new court date was sent to her both in Fairfield and in Wollongong but she denies receiving it. On 16 April 2004 Registrar Hedge dismissed her application for non‑appearance pursuant to rule 10.01(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The Registrar also relevantly made a costs order of $1,100 against the applicant.
It is not clear to me whether rule 10.01(2)(b) was available to the Registrar. That rule only applies to a first court date. That is, the first date on which the parties appear in court following the institution of a proceeding in the Court. The directions hearing on 16 April 2004 may have been a fresh directions hearing or it may have been an adjourned first court date. If it was a second court date then the power conferred by rule 10.02(2)(b) was not available. However, rule 13.03A(c) of the Federal Magistrate Court Rules would in that eventuality have been available to permit dismissal of the application.
Because of my doubt as to the validity of the Registrar's decision I have considered whether I should set aside that order and the costs order and permit the application for judicial review to proceed to a hearing. I have decided that there would be no point in doing so. The application for judicial review filed on 13 January 2004 discloses no cause of action. The application identifies the orders sought but no grounds for them. The applicant was not able to enlighten me as to what she would seek to argue if I permitted the matter to go to a hearing.
The decision of the RRT is brief but necessarily so. The applicant did not attend a hearing before the RRT that was offered to her. The applicant had not presented sufficient material to the RRT for it to make a favourable decision. I cannot see any basis on which the applicant would be able to identify jurisdictional error in the decision of the RRT. In the circumstances, it would be futile to permit this application to be taken any further.
I will dismiss the motion filed on 10 May 2004.
On the question of costs, Mr White seeks an order for costs fixed in the sum of $500, noting that the earlier costs order made by the Registrar will remain in force. The applicant did not wish to make any submissions on costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the notice of motion, which I fix in the sum of $500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 July 2004
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