SZCTI v Minister for Immigration
[2004] FMCA 929
•12 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCTI v MINISTER FOR IMMIGRATION | [2004] FMCA 929 |
| MIGRATION – Review of decision of RRT – non-compliance by applicant – motion for summary dismissal – application dismissed – costs. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
| Applicant: | SZCTI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 430 of 2004 |
| Delivered on: | 12 October 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 October 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr Fell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
That the application filed 19 February 2004 be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $4,117.75.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SZ 430 of 2004
| SZCTI |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 19 February 2004 the applicant filed in the Sydney registry an application under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth). That application was transferred for hearing to the Melbourne registry of this court by order of Federal Magistrate Driver made 26 July 2004.
On 1 October 2004 the respondent filed a notice of motion seeking dismissal of the application on the basis that the applicant had failed to comply with an order of the court and in the alternative that the application disclosed no reasonable cause of action. The respondent's costs were also sought to be paid by the applicant. At the time of the filing of the affidavit material in support of that notice of motion the amount claimed was $3,832.00. That sum was calculated in accordance with this court's scale of costs. At trial that amount was increased and claimed at $4,117.75 by the addition of two disbursement costs which have been incurred by the respondent. I am satisfied that they have so been incurred between the time of the swearing of the earlier affidavit material and this date. In support of the notice of motion application, the respondent filed an affidavit of Elena Arduca, Solicitor with the care and conduct of the proceedings on behalf of the respondent.
The applicant challenges a decision made by the Refugee Review Tribunal (“the RRT”) handed down on 20 January 2004 which affirmed a decision to refuse the applicant a protection visa. On
26 July 2004 the applicant was ordered to file and serve an amended application giving complete particulars of each ground of review. Such amended application was to be filed by 10 September 2004. I am mindful that the original application was filed on 19 February 2004, so many months had elapsed. In the event of the applicant's failure to comply in the filing of an amended application, the respondent was at liberty to seek summary dismissal. The applicant has failed to comply with that order despite his earlier non-compliance being drawn to his attention by the respondent, who indicated that it would not seek to proceed on a notice of motion and summary dismissal if the amended application was received by the solicitors acting for the respondent by 22 September 2004.
The affidavit of Ms Arduca sets out the history of the proceedings since their filing and delay that has been occasioned along that path by the applicant. I am satisfied that, as the respondent submits, the applicant has had ample opportunity to comply with this order. The applicant was able to make application to transfer the proceedings from the Sydney registry to the Melbourne registry whilst acting as a litigant in person. He has had throughout the history of these proceedings cooperation from the respondent as set out in Ms Arduca’s affidavit.
The applicant says today that he requires a further adjournment of the proceedings because he will file the necessary documents and that he is awaiting papers from overseas. I shall return to that matter hereafter when I briefly refer to the reasons of the Tribunal. The applicant has claimed to be waiting on papers from overseas in previous hearings but any papers that he has said would be forthcoming have not eventuated.
History
By way of history, the applicant arrived in Australia on 23 June 2001 on a student visa. On 8 July 2003 he lodged an application for a Protection (Class XA) visa. On 10 July 2003 a delegate of the Minister refused to grant a protection visa and on 31 July 2003 the applicant applied for review to the RRT. Oral evidence was given by the applicant to the Tribunal on the 30th day of October 2003. He was assisted by an interpreter and had the assistance of a migration agent in the preparation of his case to that point in time. The respondent has also been assisted by communications had with legal aid.
The applicant remained illegally in Australia from the expiration of his student visa in August 2002 until July 2003 whereupon he made his protection visa application. I note that the RRT referred in its reasons to the applicant claiming that he would produce original documents but that no such documents had been produced. Thereafter in paragraph 29 of those reasons the Tribunal said:
The applicant was asked for his passport, as he had provided only a partial copy… He claimed that he did not have it with him, and that if necessary he could provide it through his migration agent. No such passport or copy has been provided.
I refer to the findings and reasons of the Tribunal in paragraphs 44 through to 47 inclusive. In essence, the applicant's evidence was not believed by the Tribunal. It described many integers of his claim as vague, generalised, lacking in specific detail and inconsistent and unconvincing. The Tribunal did not consider that the applicant was "a reliable or credible witness". The Tribunal noted that the applicant at hearing was (at paragraph 45):
unable to explain, even in the most rudimentary way, anything of the politics, policies, agenda or manifesto of the AL.
The Tribunal further said (at paragraph 45):
In light of this evidence, I am unable to accept that the claim has any credibility or veracity.
The Tribunal in paragraph 46 of its reasons, set out that it was supported in its finding by the travel and visa history of the applicant, noting, as I have, that the applicant was illegally in Australia for a period of time before making a protection visa application and in excess of two years after his arrival in Australia. The Tribunal concluded that these were not the actions of someone who had a genuine fear of persecution in his own country. I propose to dismiss the application, finding no jurisdictional error committed by the Tribunal.
The applicant being entirely unsuccessful I shall order the respondent’s costs to be paid by the applicant.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 12 October 2004
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