SZDCA v Minister for Immigration
[2004] FMCA 1086
•3 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCA v MINISTER FOR IMMIGRATION | [2004] FMCA 1086 |
| MIGRATION – Refugee – no notice of intention to withdraw. |
| Applicant: | SZDCA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG836 of 2004 |
| Delivered on: | 3 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 December 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | Ms. F. Daniel |
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the Respondent: | Mr. P. Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
This application is dismissed pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules.
The applicant pay the Respondent's costs set in the amount of $2000 pursuant to rule 21.02(2)(a) of the Federal Magistrates' Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG836 of 2004
| SZDCA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application to this Court filed on 22 March 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 February 2004 and handed down on 5 March 2004 affirming a decision of a delegate of the respondent Minister made on 30 July 2003 to refuse a protection visa to the applicant.
The applicant is a Malaysian national, who arrived in Australia on 9 March 2003 and applied to the respondent Minister's Department for a protection visa on 22 April 2003.
On the first Court date in this matter on 4 May 2004 the applicant was represented by solicitor, Mr. Newman of Newman & Associates who filed a notice of appointment on that date. The Court made orders by consent that (amongst others):
“2. The applicant file and serve an amended application giving particulars of each ground of review relied upon by 27 July 2004.”
No amended application was filed by the due date, and to date no such amended application has been filed. On 4 May 2004 the Court also made an order that the respondent may file (if appropriate) a summary dismissal application after the date for the filing of an amended application.
On 5 November 2004 the respondent’s solicitors wrote to the Court, with a copy sent to the applicant’s solicitors, requesting that the matter be listed for hearing in the Court’s non-compliance list as a result of the applicant’s failure to file and serve an amended application in compliance with of orders made on 4 May 2004. On 9 November 2004 the respondent wrote to Mr. Newman notifying him of the date, time and location of when the matter had been listed on the Court’s non-compliance list. [See the affidavit of Tania Chahine sworn on 25 November 2004 and filed on the same day, and in particular annexure marked “TC1”].
At the hearing before me today Ms. Fariba an employee of solicitors Newman & Associates for the applicant, informed the Court that she had just received instructions from her client to withdraw from the matter. Mr Reynolds 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)At all relevant times the applicant was legally represented.
2)The application to the Court generally alleged error of law and a denial of natural justice. No particulars were provided.
3)A Court order was made by consent that an amended application be filed by 27 July 2004.
4)No amended application was filed by that date.
5)The respondent’s solicitors wrote to the applicant’s solicitors on 12 October 2004 and reminded them of the failure to comply and gave a period of grace until 26 October 2004 to comply.
6)No amended application was filed by that date.
7)No amended application was filed by 3 December 2004, being the date of the application for summary dismissal before me.
8)No explanation was offered for the failure to file an amended application in the seven months since the Court’s order was made.
9)The advice from the applicant’s solicitor before me that they had just received instructions to withdraw is not a satisfactory explanation of the failure to comply with the Court’s order over a seven month period.
10)In all the circumstances there appear dot be no utility in allowing a further period for the filing of 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 seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 1 March 2005
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