SZDWV v Minister for Immigration
[2005] FMCA 611
•4 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWV v MINISTER FOR IMMIGRATION | [2005] FMCA 611 |
| MIGRATION – RRT decision – application for judicial review contained no arguable ground for review – failure to comply with direction for amended application – application summarily dismissed. |
Federal Magistrates Court Rules 2001, r.13.03(1), 13.03(2)(b)
| Applicant: | SZDWV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1900 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 4 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms K Crawley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed under Rule 13.03(2)(b) for failure to comply with paragraph 2 of the Orders made on 28 September 2004.
Applicant to pay the Respondent’s costs in the sum of $2000.
Hearing on 10 June 2005 vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1900 of 2004
| SZDWV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this case the applicant filed an application on 21 June 2004 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 April 2004 and handed down on 19 May 2004.
The applicant arrived in Australia on 11 December 2003 and lodged his application for a protection visa on 7 January 2004.
The application contained a short statement in which the applicant claimed he was a “real Falun Gong practitioner”. He claimed that since 1999: “I have been detained many times for continuing to practise Falun Gong”. He claimed to have been detained for half a month in 2001, that his house was searched in December 2002, and that he was taken into detention and assaulted. He said: “Being afraid of taking responsibility I died there, they asked my family take me home”. Referring to the police, the applicant said:
After I was released on 20 February 2003, I and my family realized that there is no way out for me in my original country. If I still stay in China, I will be put into jail again. Therefore, I bribed a government officer for 130,000,00 RMB to obtain a passport and visa to Australia.
The applicant’s application for a protection visa was refused by a delegate on 12 January 2004. The delegate noted that the applicant had submitted no evidence to support his claims and that he had obtained a passport at a time when he was purportedly in detention. He considered that the applicant’s ability to obtain a passport and depart from China legally indicated that he was of no interest to the authorities.
The applicant appealed to the Refugee Review Tribunal on 12 February 2004, attaching a short statement to his application giving a further account along the lines of his original statement.
On 12 March 2004 he was sent an invitation to a hearing before the Tribunal on 15 April 2004. This was sent to the applicant’s post office mailing address and to his residential address, both of which he had given in his application. One of the letters – it is unclear from the material which letter – was returned to the Tribunal marked “Returned to Sender” on 8 June 2004, which was after the delivery of the Tribunal’s decision.
In its reasons handed down on 19 May 2004, the Tribunal said that no response had been received to the invitation, and neither letter had been returned unclaimed. It said:
The applicant has not provided a telephone contact and has not provided any information regarding any adviser or agent. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal reached its decision to affirm the delegate on the basis that, due to lack of details in the information before it, it was unable to be satisfied that the applicant had a well‑founded fear of persecution. It said that “having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.
The applicant filed an application in this Court on 21 June 2004 in which the grounds of the application are as follows:
1.I meet the refugee criteria.
2.I am a membership of Falun Gong.
3.I fear of persecution from my original country – China.
He attended a first Court date before a Registrar on 28 September 2004 and signed short minutes of directions which would have been translated to him by a Mandarin interpreter who was also in attendance. Paragraph 2 of the short minutes directed the applicant to file and serve an amended application giving full particulars of each grounds of review relied upon by 23 December 2004.
The Minister has today obtained a listing of the matter because the applicant did not comply with that order and has filed no document showing any arguable ground of review.
I am satisfied that the applicant was on proper notice that his application might be dismissed today for the reason indicated. He has appeared today. He agreed that he did not attend the Tribunal hearing, and said that this was because he had no time to attend and forgot.
He said that he has no money to get legal advice, but accepted that he had been given legal advice under the funded legal advice scheme. It appears that he did not find that advice helpful. He has not sought to file an amended application, nor sought further time to do so.
The applicant has not indicated any ground of jurisdictional error upon which he wishes to rely, and I am unable to see any prospect that he – or a lawyer on his behalf – could find one. No arguable ground of jurisdictional error has been raised in the application which has been filed.
In all the circumstances, I am satisfied this is a proper matter to dismiss under Federal Magistrates Rules 2001 r.13.03(1) for failure to comply with an order of the Court.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 May 2005
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