SZDDX v Minister for Immigration

[2004] FMCA 1066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDDX v MINISTER FOR IMMIGRATION [2004] FMCA 1066

MIGRATION – Court Orders – non-compliance.

Applicant: SZDDX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ936 of 2004

Delivered on: 5 November 2004

Delivered at: Sydney

Hearing date: 5 November 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Respondent: Ms. J. Bautista  

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed pursuant to rule 13.03 (2)(b) of the Federal Magistrates Court Rules.

2. That the applicant pay the 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

SZ 936 of 2004

SZDDX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 31 March 2004 the applicant filed an application in this Court seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 February 2004 and handed down on 18 March 2004 to affirm the decision of a delegate of the respondent Minister made on 15 May 2003 to refuse a protection visa to the applicant.

2. The applicant is a national of India who claimed to fear persecution on political grounds and “community” issues. He claimed if he returned to India Muslim organisations would kill him and the police would not protect him.

3. The grounds of the application to this Court are:

   “1. RRT [did] not trust my oral evidence. RRT not check the Indian Police records.

   2. RRT favour DIMIA.

   3. I [was] denied natural justice.”

4. On 1 June 2004 the applicant attended the first Court date in this matter. He was unrepresented, and was assisted by an interpreter in the Tamil language. On that date he signed Short Minutes of Order that subsequently became orders of the Court. Relevantly, Orders 1 and 2 provided:

   “1. The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 30 July 2004.

   2. If an amended application is not filed in accordance with Order 1 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 a direction of the Court. The respondent is to advise the applicant of the time, date and place of any such listing.”

5. The applicant had also indicated that he wished to participate in the Court’s Legal Advice Scheme and was referred to a Panel Lawyer. He consulted the lawyer on 16 June 2004 and advice was given by letter on 18 June 2004.

6. The applicant did not comply with Order 1 by the due date and the respondent then requested the matter be listed in the Court’s “non-compliance” list. This matter came before me on 5 November 2004. The applicant appeared in person and was assisted by an interpreter in the Tamil language. Ms. Bautista appeared for the respondent and sought dismissal of the application pursuant to rule 13.03 (2)(b) of the Federal Magistrates Court Rules on the basis that the applicant had failed to comply with the order of the Court. Ms. Bautista’s submissions were that:

   -The applicant had not provided particulars in support of the grounds put forward in his application

   -On 1 June 2004 the applicant attended a directions hearing where he consented to, and orders were made, for the filing of an amended application by 30 July 2004

   -The respondent filed and served the relevant bundle of documents on 21 May 2004 and a copy was provided to the Panel Lawyer assigned to the applicant.

7. Ms. Bautista submitted copies of two letters [subsequently marked respondent’s exhibits], dated 20 August 2004 and 27 September 2004 from the respondent solicitors to the applicant, putting him on notice of the intention of having the matter listed to seek summary dismissal of the application due to non-compliance with an order of the Court, and subsequently notified the applicant of the time, date and place for the hearing of the respondent’s application for summary dismissal. The respondent also sought an order for costs.

8. In response the applicant said:

   -That the date set for the filing for the amended application was July 2004 and during this period he was studying for an examination in India and was in the middle of a preparation for the examination. These studies were conducted by correspondence.

   -That when the date for the filing of the amended application passed, “friends” told him he could not file anything after that date and that he should wait for the hearing and make his submissions at that time.

   -That he did not understand the importance of complying with the Court’s orders and wanted more time to arrange the services of a lawyer to “make my submissions”.

9. In answer to my question, during the hearing of this matter, as to whether he pursued legal advice with the panel lawyer the applicant replied that he had.

10. In deciding to dismiss the applicant’s application pursuant to rule 13.03 (2)(b) of the Federal Magistrates Court Rules, I take into account the following:

    1)The respondent had filed the Court Book in this matter on 21 May 2004 before the first Court date on 1 June 2004.

    2)The grounds of the application are general and this lack of specificity makes it difficult to discern a case on behalf of the applicant.

    3)Court Order 1 was an attempt to provide some particularity to the applicant’s claims to enable prosecution of this matter.

    4)The period provided to the applicant to file the amended application, two months, was reasonable in the circumstances.

    5)The possible consequences of failing to comply with the Court’s order, were made known to the applicant by way of Order 2.

    6)The applicant did have reasonable opportunity to obtain legal advice. He took no steps to arrange his own legal advice from the period of having made the application to the Court and more particularly during the two month period provided by the Court for the filing of the amended application.

    7)The applicant did consult a panel lawyer under the Court’s Legal Advice Scheme on 16 June 2004 and received advice on 18 June 2004. There was a clear opportunity to comply with the Court’s order.

    8)The applicant’s explanation that he could not attend to complying with the Court’s order because he was studying and preparing for an examination in India is difficult to accept as the reason for not pursuing the judicial review of a decision that involved his (potentially life threatening) refugee claims. I put to the applicant that while education was important, his priority in pursuing that to the exclusion of pursuing refugee related claims, a matter that from his perspective and claims would have affected his life in a more immediate sense if he were to be returned to India, was difficult to accept as a satisfactory explanation.

    9)I also put to the applicant the difficulty of accepting that he took no action in relation to the Court’s order even after the expiry of the due date, because “friends” told him the Court order would “not operate after 30 July.” This is especially so as he did have the opportunity to access proper legal advice and did in fact receive advice from a panel lawyer.

    10) The respondent’s letter of 20 August 2004 specifically put the applicant on notice of the intention to seek dismissal for non-compliance. There is nothing before me to show the applicant took any action in response to this letter.

    11) Other than saying he would now obtain the services of a lawyer, the applicant was unable to provide anything further that he would or could act differently in the future to prosecute his application with the requisite vigour.

11. The applicant did not comply with the Court’s order to file an amended application with full particulars. He had a reasonable time to do so. He had access to legal advice. His explanation for his failure to comply was not, in the circumstances, satisfactory. While seeking more time to obtain further legal advice, the applicant did not provide any basis to show that he would act differently in the future in terms of providing an amended application with full particulars to support his claims or that he was in the position of setting out an arguable case. There has been a reasonable opportunity provided to the applicant to comply with the Court’s order. The applicant has not pursued his application with the necessary action. In all the circumstances the respondent is entitled to receive some finality in these proceedings. For these reasons the application is dismissed.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  31 January 2005