SZDMP v Minister for Immigration (No. 2)
[2005] FMCA 649
•16 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDMP v MINISTER FOR IMMIGRATION (No. 2) | [2005] FMCA 649 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court. |
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
| Applicant: | SZDMP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1329 of 2004 |
| Orders made: | 16 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr M Allatt of Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 8 March 2005.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1329 of 2004
| SZDMP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was brought before the Court by the solicitors for the respondent as a Notice of Motion seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) for failing to comply with orders of the Court.
After a brief hearing of submissions from both parties, further interim orders were made setting out a revised timetable. The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by the force of those orders. The final orders and the reasons for judgment were subsequently made in Chambers.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 May 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 March 2004 and handed down on 20 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
23 May 2003 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDMP”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 27 March 2003. On 15 April 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On 23 May 2003 the delegate refused to grant a protection visa (CB pp.33-41) and on 18 June 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-47).
In his visa application, the applicant stated he was born in November 1956 in the city of Guizhou. He claimed his religion was Zhong Gong but did not nominate an ethnic group. The applicant claimed he was married and speaks, reads and writes Chinese. He stated that he had 12 years of education. The applicant stated that he worked as a carpenter for a furniture company from 1976 until 1990 and then as photographer for an advertising company. The applicant stated he left China legally with the help of a friend. He claimed that his wife and son continue to reside in China and that he has a sister living in Australia (CB p.62).
In a statement attached to his visa application, the applicant stated he became a member of Zhong Gong in November 1998 and participated in weekly activities in the park. He stated that in 2000 the government closed down all centres of Zhong Gong and the police began to crack down on followers of this group. The applicant claimed that the police closed down 40 Zhong Gong centres in the provinces of China and the founder of the group went into hiding. The applicant stated he feared persecution for being a member of the Zhong Gong group and is unwilling to return to China. He stated that he would like to live in Australia where he can practise his religion freely (CB p.63).
Litigation history
A brief summary of the litigation history of this matter is as follows:
a)On 6 May 2004 the applicant filed an application for a review of the Tribunal’s decision made on 20 April 2004.
b)
On 16 August 2004 the matter was listed for directions before a Registrar of the Court. On that date orders were made requiring the applicant to file and serve an amended application giving complete particulars of each ground of review being relied upon and any evidence upon which the applicant proposed to rely by
1 October 2004.
c)The applicant did not file an amended application or any written submissions by the date set down in the orders and on 8 November 2004 the matter was listed for a non compliance hearing seeking the application be dismissed for failing to comply with Court orders.
d)The applicant failed to appear and the application was dismissed pursuant to Rule 13.03A(c) of the Rules for default of appearance of a party. The reasons for the dismissal are set out in the judgment of this Court: SZDMP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 777.
e)On 26 November 2004 the applicant filed a Notice of Motion together with an affidavit seeking the re-instatement of his matter and explaining the circumstances of his failure to appear at the hearing on 8 November 2004. The matter was listed for a Notice of Motion hearing on 8 March 2005.
f)After hearing submissions from both parties, I made orders to provide the applicant with a further opportunity to continue with his application and advised him of the importance of complying with the timetable set down and the requirements of the Court to have pleadings supported by evidence before the application could proceed. The following orders were made:
1.The applicant file and serve a further 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 8 April 2005.
2.The respondent has leave to file and serve any further written legal submissions in response to the further amended application by 15 April 2005.
3.If the applicant does not comply with Order 1, the matter will be dealt with in Chambers by Federal Magistrate Lloyd-Jones for summary dismissal.
4.Liberty to either party to apply to the Court for a listing for further directions.
g)By letter dated 12 April 2005, Mr Murray Allatt, Senior Lawyer, for the respondent’s solicitors advised that the Court file had been examined on 12 April 2005 and no amended application had been filed in accordance with the orders of the Court. In those circumstances, the respondent’s solicitors sought that the substantive application be dismissed on the grounds that the applicant had failed to comply with the Court orders.
Reasons
This matter was referred to me in Chambers seeking an order for the dismissal of the substantive application. An examination of the file revealed that the applicant had complied with the orders of the Court by filing an amended application on 8 April 2005. The document, which was a photocopy although stamped as an original, did contain an original signature. The document also carried the Registry data processing stamp which recorded that the matter was noted on the Registry computer system and the Registry filing stamp which recorded the document as being filed on 8 April 2005. The Court file contained an application to inspect documents form that was completed by the respondent’s solicitors on 12 April 2005 and indicated that the person carrying out the inspection was viewing the file to determine whether an amended application had been filed. The form was initialled and stamped by a Deputy Registrar granting permission for the inspection to take place.
Despite this discrepancy in dates, I accepted that the applicant had filed the amended application within the specified time nominated in the orders made on 8 March 2005.
The grounds in the original application filed on 6 May 2004 were set out as follows:
“1.The applicant was not given enough time to represent his application by RRT.
2.It is wrong the RRT made decision that the applicant was not a refugee.
3.RRT decision has been attached.”
In the amended application filed on 8 April 2005, the following ground was pleaded:
“Section 424A of the Migration Act 1958:
The Tribunal failed to comply with its obligations pursuant to the above Act and denied the appellant procedural fairness.”
There was no supporting affidavit or any other form of material filed in support of the amended application.
At the original directions hearing before the Registrar on 16 August 2004 the applicant indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and a legal adviser was allocated to provide advice to the applicant. That adviser was notified that the applicant was to file an amended application by 1 October 2004 and a copy of the Court Book was provided. The amended application did not disclose any cause of action and, in the absence of any particularisation, evidence or transcript details, would not succeed if the matter proceeded to a final hearing.
I am satisfied that the applicant had been provided with assistance in the preparation of his case and has been permitted to reinvigorate the proceedings despite his failure to appear when this matter was previously being reviewed on the question of non compliance with Court orders. Consequently, as the applicant has not disclosed any arguable ground for review, I believe that the substantive application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 May 2005
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