SZDCR v Minister for Immigration
[2004] FMCA 1094
•05 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCR v MINISTER FOR IMMIGRATION | [2004] FMCA 1094 |
| MIGRATION – Court Orders – non-compliance. |
| Migration Act 1958 |
| Applicant: | SZDCR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 865 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 05 November 2004 |
| Date of Last Submission: | 26 October 2004 |
| Delivered at: | Sydney |
| Delivered on: | 05 November 2004 |
REPRESENTATION
| Counsel for the Applicant: | NIL |
| Solicitors for the Applicant: | NIL |
| Counsel for the Respondent: | Ms. C. Gray |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to Rule 13.03(2)(a) of the Federal Magistrates Court Rules.
Applicant to pay respondent’s costs set in the amount of $1500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2004
| SZDCR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application to this Court filed on 24 March 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 February 2004 and handed down on 25 February 2004 affirming the decision of a delegate of the respondent Minister made on 14 November 2003 to refuse a protection visa to the applicant.
The applicants are Indian nationals, husband and wife, who arrived in Australia on 6 June 2003 and applied to the respondent Minister's Department for a protection visa on 4 July 2003. [Only the applicant husband submitted refugee claims. The applicant wife applied as a member of his family unit].
On the first Court date in this matter on 11 May 2004 the principal applicant was unrepresented. He was assisted by an interpreter in the Hindi language. He signed Short Minutes of Order which by consent subsequently became orders of the Court, including orders 2 and 3:
“2. The applicant file and serve an amended application giving particulars of each ground of review relied upon by 15 July 2004.
3. If an amended application is not filed in accordance with Order 2 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 the direction of the Court. The Respondent is to advise the Applicant of the time, date and place of any such listing.”
No amended application was filed by the due date, and to date no such amended application has been filed. The applicant was referred to a panel lawyer on the Court’s Legal Advice Scheme who was provided with a Court Book on 20 July 2004. The applicants had over 5 months to file and serve an amended application and over 3 months to prepare the case from the date of [effective] referral to the panel adviser.
On 20 September 2004 the respondent’s solicitors wrote to the applicant advising that the respondent was seeking to place the matter in the Court’s non-compliance list for summary dismissal as a result of the applicant’s failure to file and serve an amended application in compliance with Court orders made on 11 May 2004. The respondent then wrote to the applicant again on 28 September 2004 notifying the time, date, and location of when the matter had been listed on the Court’s non-compliance list. [See the affidavit of Andrea Jane Nesbitt sworn on 26 October 2004 and filed on the same day, and in particular annexure marked “B”].
At the hearing before me today Ms. Gray for the respondent Minister sought an order that the application be dismissed for non-compliance with the Court’s orders. Both applicants appeared before me today. The applicants could provide no explanation for the failure to comply, other than a reference by the applicant husband that he was waiting for documents related to his problem in India and that he was preparing submissions with the help of a Migration Agent. I explained to the applicants the role of the Tribunal and the role of the Court and that it appeared the documents the applicant said he was waiting for went to the issue of the merits of his refugee claims, not to the legal grounds for review.
In all the circumstances it was appropriate that I make an order dismissing the application. In particular:
1)The application to the Court made on 24 March 2004 generally alleged error of law, bad faith, and a denial of natural justice. No particulars were provided.
2)A Court order was made, by consent, that an amended application be filed by 15 July 2004.
3)No amended application was filed by that date.
4)The Court also made an order putting the applicants on notice that non compliance with the order could result in a summary dismissal application.
5)The respondent’s solicitors wrote to the applicants on 20 September 2004 and reminded them of the failure to comply and of the intention to list in a non-compliance list.
6)No amended application was filed following that advice.
7)No amended application was filed by 5 November 2004, being the date of the application for summary dismissal before me.
8)No acceptable explanation was offered for the failure to file an amended application in the five months since the Court’s order was made.
9)The advice from the applicants before me that they need a further two weeks to obtain some documents from India is not a satisfactory explanation of the failure to comply with the Court’s order and appears to be directed to reagitating the facts before the Tribunal.
10)In all the circumstances there appears to 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: 15 March 2005
0
1