SZCSW v Minister for Immigration
[2005] FMCA 394
•1 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCSW v MINISTER FOR IMMIGRATION | [2005] FMCA 394 |
| MIGRATION – Review of Refugee Review Tribunal decision to refuse applicant a protection visa – dismissal on basis of non-appearance. |
| Migration Act 1958 Federal Magistrates Court Rules 2001, Rules 13.03(2)(b), 21.02(2)(a) |
| Applicant: | SZCSW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 407 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms K. Bryant |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to 13.03(2)(b) of Federal Magistrate Court Rules 2001.
Applicant to pay Respondent’s costs in the order of $1,500 pursuant to 21.02(2)(a) of Federal Magistrate Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 407 of 2004
| SZCSW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application to this Court filed on 17 February 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 December 2003 and handed down on 16 January 2004 affirming the decision of a delegate of the respondent Minister made on 21 March 2003 to refuse a protection visa to the applicant.
The applicant is a Chinese national, who arrived in Australia on 10 December 2002 and applied to the respondent Minister's Department for a protection visa on 16 December 2002.
On the first Court date in this matter on 17 June 2004 the applicant appeared before Registrar Hedge, unrepresented and assisted by a Mandarin speaking interpreter. The Court made orders, by consent, that (amongst others):
“1. The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 28 September 2004.
“2. If an amended application is not filed in accordance with Order 1 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. The respondent is to advise the applicant of the time, date and place of any such hearing.”
The matter was listed for a further call over on 1 February 2005.
On 1 February 2005 the matter came before Registrar McIllhatton who noted that no amended application had been filed and referred the matter to the duty Federal Magistrate. The applicant appeared before me today and was assisted by an interpreter in the Mandarin language.
Ms Bryant, for the respondent Minister, sought an order that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules, for non-compliance with the Court’s orders.
In all the circumstances it was appropriate that I make this order. In particular:
1)The applicant applied for review of the Tribunal’s decision on 17 February 2004.
2)The respondent filed and served the Court Book on 31 May 2004.
3)On 17 June 2004 a Court order was made, by consent, that an amended application, giving full particulars of each ground of review, be filed by 28 September 2004.
4)No amended application was filed by that date.
5)By order 2 the applicant was on notice of the consequences of his failure to comply with order 1.
6)From the Bar table Ms Bryant advised that the Minister received notification that a panel adviser on the Courts Legal Advice Scheme had been allocated to the applicant on 22 December 2004, and the Court Book was served by hand on the panel adviser the following day (“Brett Slater, Solicitors”). She further advised that she had been informed by the panel lawyer that the applicant did not attend the interview that had been arranged, and therefore provided advice in writing and sent it to the applicant at both addresses provided by the applicant in the application for review. Clearly none of this has been put to the Court in any proper evidenciary form. Importantly, however, the applicant had the opportunity to access legal advice.
7)The application to this Court does not put forward any grounds for review. It appears to be a restatement of the applicant’s refugee claims.
8)The applicant did not attend the hearing before the Tribunal. This is recorded in the Tribunal’s decision record at CB 57 to 58. The Tribunal provides details of the attempts by the Tribunal to contact the applicant to invite him to a hearing. A copy of the letter inviting the applicant to the hearing is at CB 46. The letter inviting the applicant was sent to the address provided by the applicant in his application for review to the Tribunal, that is the mailing address, with a copy sent to his home address as notified by the applicant. (see CB 44). At CB 58 the Tribunal indicates that the applicant did not attend the scheduled hearing. No explanation appears to have been provided.
9)At the hearing before me today the applicant remained silent and provided no explanation for the failure to take relevant steps to pursue his claim, other than a separate statement that he was unable to “obtain documents to prove” his claim. This appeared to be a reference to his claims before the Tribunal.
10)No amended application has been filed to date and no grounds for judicial review have been put forward.
The applicant had the opportunity to access legal advice, has not put forward any grounds for review of the Tribunal’s decision, has not filed any amended application giving particulars of his claim in the seven months available to him, had a reasonable opportunity today to explain his failure to actively pursue his application and put nothing forward to show any utility in being given more time to comply with the Court’s order. The applicant has been markedly inactive in pursuing his claim.
For all these reasons this application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 29 March 2005
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