SZCTQ v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCTQ v MINISTER FOR IMMIGRATION [2005] FMCA 252

MIGRATION – Application to set aside orders dismissing application for non-appearance – whether adequate explanation for non-appearance – whether arguable case – whether futile to set aside orders.

Applicant: SZCTQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 448 of 2004

Judgment of: Barnes FM

Hearing date: 25 February 2005

Delivered at: Sydney

Delivered on: 25 February 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application under Rule 16.05 of the Federal Magistrates Court Rules is dismissed.

2. That the applicant pay the respondents costs set in the amount of $500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 448 of 2004

SZCTQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 24 January 2005.  The applicant seeks that the court set aside orders that were made on 14 December 2004 dismissing her application for review of a decision of the Refugee Review Tribunal for non-appearance. 

2. The background to these proceedings is that the applicant is a citizen of India who arrived in Australia with her daughter on 1 August 2003.  She sought a protection visa.  It was refused.  She sought review by the Tribunal.  On 3 February 2004 the Tribunal affirmed the decision not grant her or her daughter protection visas. 

3. She sought review of that decision by application filed in this court on 23 February 2004.  The grounds in that application were as follows:

   1.  I asked natural justice.

   2.  The RRT asked irrelevant questions from the interview.

   3.  RRT favour to DIMIA.

   4.  The Tribunal failed to make reference to the country report.

4. The applicant attended a directions hearing on 24 June 2004.  She had the assistance of a Tamil interpreter.  Consent orders were made that, among other things, the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant and any evidence upon which she proposed to rely by 30 September 2004.  The orders also provided that if that did not occur the respondent could request that the matter be listed in a non-compliance list with the intention of applying for summary dismissal due to the applicant’s non-compliance with the direction of the court. 

5. The applicant did not file an amended application or any other evidence.  On 19 November 2004 the solicitors for the respondent wrote to the applicant drawing her attention to the order that required her to file and serve an amended application by 30 September 2004, stating that they were taking steps to have the matter listed in a non-compliance list and that they would apply to have the matter summarily dismissed.  In other words, this letter reminded the applicant of her obligations and warned her again of the consequences.  She did not…