SZDRP v Minister for Immigration
[2005] FMCA 580
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRP v MINISTER FOR IMMIGRATION | [2005] FMCA 580 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with orders of the Court – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant. |
Federal Magistrates Court Rules 2001(Cth), Rule 13.03(2)(b), 13.03A(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
| Applicant: | SZDRP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1594 of 2004 |
| Hearing date: | 1 March 2005 |
| Delivered at: | Sydney |
| Orders made: | 1 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms A Radich of Blake Dawson Waldron |
ORDERS
The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) due to the applicant’s failure to comply with an order of the Court and pursuant to Rule 13.03A(c) due to the applicant’s failure to appear.
The applicant is to pay the respondent’s costs, fixed in the sum of $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1594 of 2004
| SZDRP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent as a result of a request for the matter to be listed for directions in the non compliance list. The matter was listed for hearing at 11.15 a.m. but there was no appearance by the applicant at that time. The respondent solicitors had complied with orders made at a directions hearing by preparing, filing and serving a Court Book. The applicant was been given a period of grace to appear but did not respond to the matter being called approximately fifteen minutes after the scheduled hearing time and there had been no indication from the applicant as to his inability to attend the hearing.
The respondent’s solicitors sought that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001(Cth) (“the Rules”) due to the applicant’s failure to comply with orders of the Court. I believed it was in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 27 May 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 April 2003 and handed down on 29 April 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 18 March 2002 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 “SZDRP”.
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 6 September 2001. On 27 September 2001 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.1-24) (“CB”). On 18 March 2002 the delegate refused to grant a protection visa (CB pp.32-37) and on 7 April 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.38-40).
The applicant, who was born in June 1981, is a male of Fijian citizenship and Indo-Fijian ethnicity. He claimed his occupation was that of a printer. The applicant stated that he speaks, reads and writes English and speaks Hindi. He stated that he came from Lami, about 5 kilometres from Suva. The applicant claimed that since the recent coup lead by George Speight things have become very bad for Indo-Fijians and he believed he had been denied his basic rights by indigenous Fijians (CB pp.6-7).
Respondent’s application
Ms A Radich, Solicitor for the respondent in the substantive proceedings tendered and applied for the affidavit of Dean Anthony Bell sworn on 1 March 2005 (“the affidavit of Mr Bell”) to be admitted into evidence. A Court Book prepared by the respondent’s solicitors was filed and served on 12 October 2004. Annexed to the affidavit of Mr Bell and marked “DB2” was a letter from the respondent’s solicitors to the applicant advising him of the proceedings before the Court and the nature of the application being made. The relevant section of that letter stated:
“At the directions hearing in this matter on 17 September 2004, the Court ordered you to file and serve an amended application giving complete particulars of each ground of review being relied upon by you in your application, by 29 November 2004.
On 1 December 2004, you served on us an amended application. Your amended application identifies at least one ground of legal error (“breach of the rules of natural justice”), however it does not provide any proper or meaningful particulars. The particulars that have been provided appear to be seeking merits review of the Tribunal decision. In our opinion the amended application does not comply with the Court order which requires you to file and serve an amended application “giving complete particulars of each ground of review being relied upon” by you.
Accordingly, we have requested the Court to list the matter for hearing for non-compliance by you before Federal Magistrate Lloyd-Jones on 1 March 2005 at 11.15 am at John Maddison Tower, 86 Goulburn Street, Sydney.
If you file and serve an amended application prior to that time which gives proper and complete particulars of the grounds that you rely upon (for example, by stating precisely how it is you say the Tribunal breached the rules of natural justice), the Minister may have the hearing vacated. If you have not complied with the Court order by that time, the Minister will ask the Court to dismiss your application, and the Minister will also seek an order that you pay the Minister’s costs of the proceedings.”
The affidavit of Mr Bell indicated that at the time of making the affidavit neither he, nor to the best of his knowledge, any other person on behalf of the respondent, had received any further amended application or a response to the letter sent to the applicant which was been identified as “DB2”.
On 27 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“(a)I have a fear of intimidation and harassment upon return to Fiji Island.
(b)I have the fear that I will be subject to some violent criminal act and mistreatment by the indigenous Fijians.
(c)I am unwilling to avail myself of the protection of Fiji Islands.”
On 17 September 2004 the applicant attended a directions hearing and consented to Short Minutes of Order requiring the applicant to file and serve an amended application giving complete particulars of each ground of review to be relied upon by the applicant in his application to the Court by 29 November 2004. On or about 1 December 2004 the respondent’s solicitor received an unfiled amended application from the applicant which contained the following grounds:
“(A)I am afraid of being tortured, harassed and even get killed just because of I am a member of an Indian community.
(B)I will be harmed by the indigenous Fijians.
(C)As most of the positions are filled by the indigenous Fijians it’s almost impossible to report Fijians [aggression] to the indigenous Fijian authorities.” (Errors included)
There is no record on the Court file of this document being filed in the Court Registry at any time.
Reasons
The Court file indicated that the applicant sought to participate in the Pilot RRT Legal Advice Scheme (NSW) and that he was allocated a legal adviser under that Scheme. Whether he availed himself of this service I was not able to determine from the Court file. I also noted that at the first scheduled directions hearing listed before Registrar McIllhatton on 3 September 2004 the applicant failed to appear and Short Minutes of Order were made re-listing the matter for a further directions hearing on 17 September 2004. At the second directions hearing the applicant appeared with the assistance of a Fiji/Hindi interpreter and was provided with the standard Court forms setting out the procedures followed by the Court in dealing with the applicant’s matter. The normal practice is that this material is explained to the applicant by the respondent’s solicitors with the assistance of the interpreter.
I acknowledge the problems faced by the self represented litigant however the resources that are available to assist the self represented litigant have been provided to this applicant.
I accepted the respondent’s submissions that the particulars contained in the amended application appeared to be seeking a merits review of the Tribunal’s decision. The problems with the amended application were drawn to the applicant’s attention in the respondent’s solicitors’ letter dated 6 January 2005 and reproduced above at paragraph 5. A further period of grace was provided to the applicant to rectify his pleadings but there was no action taken by the applicant.
In the circumstances, I believed the application made by the respondent’s solicitors that due to the applicant failure to comply with orders of the Court, the substantive matter should be dismissed pursuant to Rule 13.03(2)(b) of the Rules. The matter should also be dismissed pursuant to Rule 13.03A(c) on the grounds that the applicant failed to appear at the hearing and no explanation was provided by the applicant in respect of his absence.
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: 4 May 2005
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