SZCSX v Minister for Immigration
[2005] FMCA 357
•1 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCSX v MINISTER FOR IMMIGRATION | [2005] FMCA 357 |
| MIGRATION – Dismissal on basis of failure to comply with court order – Rule 13.02(2)(b) of the Federal Magistrates Court Rules 2001. |
| Migration Act 1958 Federal Magistrate Court Rules 2001, Rules 13.03(2)(b), 21.02(2)(a) |
| Applicant: | SZCSX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 408 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 T Chahine |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrate Court Rules 2001.
The applicant pay the respondent’s costs set in the amount of $2500 pursuant to Rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 408 OF 2004
| SZCSX |
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 the 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 16 August 2002 to refuse a protection visa to the applicant.
The applicant is a Pakistani national, who arrived in Australia on
28 November 2000 and applied to the respondent Minister's Department for a protection visa on 28 December 2000. He claimed to fear harm from drug dealers through his work with an anti-drugs community group
On the first Court date in this matter before Registrar Hedge on 17 June 2004 the applicant was self represented. He was assisted by an interpreter in the Urdu language. The applicant signed short Minutes of Orders and subsequently, the Court made orders, by consent, that (amongst others):
“2. The Applicant file and serve an amended application giving full particulars of each ground of review relied upon by
2 September 2004.”“3. After the date for the filing of an amended application, the Respondent may file a summary dismissal application which is to be given a return date by the registry upon filing.”
The matter was listed for further call over on 1 February 2005. Registrar McIllhatton referred the matter to the duty Federal Magistrate in circumstances where no amended application was filed by the due date, and to date no such amended application has been filed.
Before me today Ms Chahine 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)A Court order was made on 17 June 2004, by consent, that an amended application be filed by 2 September 2004.
2)No amended application was filed by that date.
3)The applicant was on notice by order 3 of the possible consequences of failing to comply with order 2.
4)No amended application was filed by 1 February 2005 being the date of the application for summary dismissal before me.
5)No acceptable explanation was offered for the failure to file an amended application in the seven months since the Court’s order was made.
6)
The applicant did access the Court’s Legal Advice Scheme and was given legal advice on 26 August 2004, and advised the Court today that he had sought other legal advice. He said that he was not satisfied with the legal advice because he was told: “my case couldn’t be successful.” His explanation for not filing an amended application was that he was expecting the panel advisor to do this.
I put to the applicant that once the panel advisor had given him the advice which he said was unsatisfactory, and which he did not accept, it was difficult to see why he would have an expectation that in those circumstances the panel lawyer would take any further action on his behalf.
7)Before me today the applicant’s complaint about the Tribunal’s decision was that the Tribunal did not ask him to provide any evidence. In his application for review to the Tribunal signed by the applicant he indicated that he was represented by a firm of solicitors, who were also nominated as “Authorised Recipients” of correspondence on his behalf. See CB 49 to CB 51. His advisers made representations on his behalf. See CB 60 to CB 61. The applicant attended the Tribunal hearing on 9 October 2003 after having been put on notice that the Tribunal was unable to make a favourable decision on the material before it. The hearing was the applicant’s opportunity to support his claims. The applicant was represented and had every opportunity to provide whatever type of information he felt, or his advisor felt was relevant to his claims to the Tribunal. The Tribunal is not obliged to make the case for the applicant. He had assistance and he had opportunity to fully support his claims.
8)Further, in a letter dated 30 September 2003 (CB 60), the applicant’s own adviser recognises the applicant’s position when he says:
“The dearth of independent evidence corroborating the existence of this particular group places an evidentiary burden of proof on [the applicant] which he will seek to fulfil through his oral testimony at the hearing.”
In essence the adviser was stating that no documentation would be produced, rather that the applicant would fulfil the requirement to satisfy the Tribunal, at the oral hearing.
9)Before me today, the applicant sought to put “circumstances of my country”. It was clear that the applicant was looking to the Court as an opportunity to re-hear his refugee claims and sought to provide new material relating, he said, to a friend who had returned to Pakistan recently and had been murdered. The applicant was unable to show how this was directly relevant to his claims.
10)There was nothing put before me by the applicant to properly explain his failure to file an amended application, nor does his application to this Court appear to be anything more than an attempt to re-agitate the facts before the Tribunal.
11)I could see no utility, in all the circumstances, to giving the applicant more time to file an amended application.
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 six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 24 March 2005
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