SZEPL v Minister for Immigration
[2005] FMCA 592
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEPL v MINISTER FOR IMMIGRATION | [2005] FMCA 592 |
| MIGRATION – Review of decision of Refugee Review Tribunal – applicant had already applied to this Court – discontinued – interlocutory application – failure to file an amended application – application summarily dismissed. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001, r.13.03(2)(b) |
| Applicant: | SZEPL |
| Respondent: | MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3135 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 13 April 2005 |
| Date of Last Submission: | 13 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Advocate for the Respondent: | Mr Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 20 October 2004 be dismissed pursuant to r.13.03(2)(b) of the Federal Magistrates Court Rules 2001 for failure to comply with the order of 2 November 2004 requiring the filing and serving of an amended application by 30 January 2005.
The applicant pay the respondent’s costs fixed in the sum of $2,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3135 of 2004
| SZEPL |
Applicant
And
| MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore decision which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal). In this matter the Tribunal made its decision on
5 March 2003 and handed down that decision on 25 March 2003. That is over two years ago. The decision of the Tribunal affirmed the decision of the delegate not to grant a protection visa.
An application was filed in this Court on 17 April 2003 seeking to have the Court review the decision of the Tribunal. The grounds of the application were:
I seek a review of decision of RRT.
I seek an order that decision of RRT be set aside on ground that the decision involved an error of law being either an incorrect interpretation of the applicable law or incorrect application of law.
On 5 February 2004 the application was discontinued by consent with the applicant paying the respondent’s costs.
The current application was filed in this Court on 20 October 2004. The grounds are as follows:
1. My home was attacked again last month
2. The Minster deprived me of the natural justice
3. The Migration Act of 1958 was not properly observed
4. The decision do not reflect the material facts of my claim
5. The decision concentrated in particular fact, while ignored many facts in this case
6. The decision was made without any inquiry regarding my claims.
7. The decision was made preseted in the back of Minister’s mind.
On 2 November 2004 Registrar McIllhatton made the following orders, amongst others, by consent with the applicant present in the Court:
2. The applicant file and serve an amended application giving complete particulars of each ground of review relied upon and any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 30 January 2005.
3. If the applicant does not comply with order 2, the respondent may request the Registry to list the matter in a non-compliance list before the docket Federal Magistrate with the intention of applying for summary dismissal. The respondent must give the applicant 5 days clear notice of the time, date and place of that listing.
On 24 February 2005 the respondent wrote to the applicant at his most recent address drawing attention to order two.
The respondent stated in that letter:
We have been instructed to allow you until 10 March 2005 to file and serve an amended application giving complete particulars of each ground of review relied upon. The amended application must also disclose a reasonable basis.
We are instructed by our client that if by 10 March 2005 you do not file and serve an amended application that:
1. gives complete particulars of each ground of review relied upon; and
2. discloses a reasonable basis,
she will apply to have your matter summarily dismissed with costs for failure to comply with the orders of the Court and/or a failure to disclose a reasonable basis for your application.
This letter was sent to the address provided by the applicant in a notice of change of address for service dated 2 November 2004.
The applicant has not filed an amended application in the Court, although he has sent to the respondent’s solicitors a letter dated
10 March 2005 claiming that his life was in danger if he returned to India and enclosing a faxed copy of a letter from a municipal corporation in India.
This letter from the applicant was not received by the Court, but is headed in handwriting, “Ammended Application”. Mr Reynolds for the respondent has deposed that he received that document on
10 March 2005.
The issue before me is whether or not I should dismiss the application to this Court for the failure to comply with the Court’s orders.
No amended application has been filed in the Court. The purported amended application that was sent to the respondent’s solicitors is not an application at all. It provides neither grounds for review nor any supporting particulars. The application filed in this Court on
20 October 2004 although setting out seven alleged grounds for review is completely devoid of particulars.
It is clear that the applicant’s case falls within the powers of the Court to dismiss an application under r.13.03(2)(b) of the Federal Magistrates Court Rules 2001. The question is whether there are any discretionary considerations which would suggest that I should not take that action.
The applicant indicated to me that the delay was because he was seeking more documents from India and he needed more time. He said that he was not well-educated and he did not know what documents he required. His wife had told him not to come back to India because he was at risk if he did. But as I have noted, the decision in the Tribunal was handed down in March 2003 – over two years ago.
The first application filed in the Court in April 2003 was discontinued in February 2004. It was not until October 2004 that the applicant filed again in this Court. There is absolutely no doubt in my mind that the applicant has had ample time to provide an amended application with viable grounds for review containing full particulars.
I therefore dismiss the application filed on 20 October 2004 pursuant to r.13.03(2)(b) for failure of the applicant to comply with the orders of the Court made by consent on 2 November 2004.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 12 May 2005
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