SZEHJ v Minister for Immigration

[2005] FMCA 1942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHJ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1942

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of India who did not appear at court.

PRACTICE & PROCEDURE – Delay – where decision handed down on 6 July 2000 but application for judicial review not filed until 27 August 2004 – Competency – Objection to Competency.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.477 (1A)
Federal Magistrates Court Rules 2001 Rule 13.03A (c)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: SZEHJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 2675 of 2004

Delivered on: 15 December 2005

Delivered at: Sydney

Hearing date: 15 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Mr Potts

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2675 of 2004

SZEHJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 22 June 2000 and handed down on 6 July 2000. It was a decision that affirmed the decision of a delegate of the Minister made on 3 December 1998 refusing the Applicant for a protection visa.

2. The Applicant attended a hearing before the Tribunal on 21 June 2000 and the Tribunal made its decision the following day and handed that decision down on 6 July 2000 affirming the decision not to grant a protection visa.

3. After reviewing the claims and evidence made, including the independent country information, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the Applicant.  There were two reasons:  first, the Tribunal did not believe the Applicant’s claims due to reservations about the Applicant’s credibility and, even if the Applicant’s claims were true, the Tribunal was satisfied that he could relocate within the country of India.

4. The Applicant was a party to the Lie class action in the High Court of Australia and it would appear that, being a party to that well-known action, would account for some of the delay in bringing these proceedings. Whether it was an explanation for the entirety of the delay is something that is not able to be ascertained by me at this stage but it is something that, had the Applicant attended the Court today, I would have been interested to hear from him.

5. In any event, the Applicant has no longer maintained contact with his solicitor, Mr Jayawardena, who filed a Notice of Ceasing to Act and attended Court today to advise of his difficulty and, in fact, the impossibility of obtaining instructions and I granted him leave to withdraw. Clearly, there was nothing further the solicitor could add to the proceedings being as bereft of instructions as he was. 

6. The Applicant has just not attended Court; he was called after the hour of 3:00pm when this matter was listed for hearing and did not attend.  His solicitor has not heard from him for some time. I stood the matter down and it is now after quarter to 4 and the Applicant has not appeared.  I have released the interpreter and it is quite obvious to me that the Applicant has not appeared. Certainly nothing has been received by my personal Court staff by way of any fax or telephone message to indicate that the Applicant is either on his way but late or had been hindered or delayed by any illness, injury or other matter.

7. There is an application for costs in the sum of $5,000.00. That includes counsel’s fees and, in my view, is well within the scale envisaged by the Rules.  I see no reason why I should not make an order for costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  23 December 2005