SZEGY v Minister for Immigration
[2005] FMCA 352
•4 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGY v MINISTER FOR IMMIGRATION | [2005] FMCA 352 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – dismissal for non-compliance. |
| Migration Act 1958 Federal Magistrates Court Rules 2001, rr.13.03(2)(b), 21.02(2)(a) |
| Applicant: | SZEGY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2654 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms L. Gazi |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
Application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrate Court Rules.
Applicant to pay Respondents costs set in the amount of $2,900 pursuant to Rules 21.02(2)(a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2654 of 2004
| SZEGY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application to this Court filed on 26 August 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 June 2004 and handed down on 20 July 2004 affirming the decision of a delegate of the respondent Minister made on 21 April 2004 to refuse a protection visa to the applicant.
The applicant is a Chinese national, who arrived in Australia on
19 February 2004 and applied to the respondent Minister's Department for a protection visa on 22 April 2003. His claim before the Court is that the Tribunal made an error of law in its decision. This is not particularised
On the first Court date in this matter on 13 September 2004 the applicant was self represented and assisted by a Mandarin speaking interpreter. He signed short minutes of orders that subsequently became orders of the Court, which included:
“2. The applicant file and serve an amended application giving complete particulars of each ground of review relied upon together with any affidavit material to be relied upon by 8 November 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 a direction of the Court. Once listed the respondent to advise the applicant of the time, date and place of that listing.”
No amended application was filed by the due date, and to date no such amended application giving complete particulars has been filed.
On 17 November 2004 the respondent’s solicitors wrote to the applicant, by letter sent to his postal address as notified in his application to the Court, advising that correspondence sent to the applicant’s home address had been returned to the respondent and asking for advice on any new address details. No reply was received. On 14 December 2004 the respondent’s solicitors wrote to the applicant – at the address for service, with a copy sent to the applicant’s home address, advising that the matter was listed for hearing in the Court’s non-compliance list as a result of the applicant’s failure to file and serve an amended application in compliance with Court orders made on 13 September 2004, and notifying the applicant of the date, time and location of when the matter had been listed in the Court’s non-compliance list. [See the affidavit of Laura Gazi sworn on 15 December 2004 and filed on 16 December 2004, and in particular Annexures marked “E and F”].
The applicant appeared before me today and was assisted by an interpreter. Ms Gazi for the respondent Minister sought an order that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules, for non-compliance with the Court’s orders.
In all the circumstances it was appropriate that I make this order. In particular:
(a)The application to the Court generally alleged error of law. No particulars were provided.
(b)A Court order was made, by consent, that an amended application giving full particulars be filed by 8 November 2004.
(c)No amended application was filed by that date.
The respondent’s solicitors wrote to the applicant on 14 December 2004 and reminded him of the failure to comply and that the matter had been set down for a hearing on summary dismissal of the application on 4 February 2005. Previous attempts to contact the applicant were unsuccessful.
No amended application was filed by 4 February 2005, being the date of the application for summary dismissal before me.
At first in response to a request for an explanation for the failure to comply the applicant said: “I don’t know”. When pressed he said that he was unable to find a good solicitor. The applicant advised he had accessed the Court’s Legal Advice Scheme and spoken to a panel lawyer but had felt that “they are not suitable for me”. By “suitable” he said he meant a solicitor who could help him “in the right way.” He could offer no explanation as to why he did not find any other lawyer.
The applicant had ample opportunity to pursue the amended application in a proper manner and obtain legal advice, he had well over four and a half months. The applicant was also given access to legal assistance.
Nor was the applicant able to offer anything to the Court to cause me to give him more time. At best his complaint was that good solicitors cost a lot of money and he could not afford it.
For all these reasons this application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 24 March 2005
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