SZFLV v Minister for Immigration

[2005] FMCA 1621

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLV v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1621

MIGRATION – Judicial review application dismissed where no cause of action disclosed.

Applicant: SZFLV

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG90 of 2005

Judgment of: Driver FM

Hearing date: 5 September 2005

Delivered at: Sydney

Delivered on: 5 September 2005

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Ms K Crawley
Clayton Utz

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

4. The Court directs that the Minister is to arrange to have these orders entered and cause a sealed copy of these orders, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth), to be served on the applicant by ordinary pre-paid post at his last known address for service.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 90 of 2005

SZFLV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Orders in the following terms were made by me on 18 July 2005:

   (1)Grounds 1 and 2 of the judicial review application filed on
   12 January 2005 be struck out on the basis that no jurisdictional error is asserted.

   (2)The applicant has leave to file and serve on the respondent an amended application setting out grounds asserting jurisdictional error and such application, if made, is to be filed and served no later than 31 August 2005.

   (3)If no amended application is filed and served by 31 August 2005, the respondent has leave and liberty to apply for an order in chambers dismissing the judicial review application as disclosing no cause of action, without further reference to the applicant.

   (4)If there is purported compliance with order 2 that the Minister asserts that the purported compliance is no compliance, the Minister has leave to apply for further orders or directions, in which case the matter will be listed for further directions at 9.30am on 5 September 2005.

   (5)The applicant is to pay the respondent’s costs and disbursements of today’s directions hearing, fixed in the sum of $500.

2. The applicant was, by that order, put on notice that a dispute with his compliance with the orders would be the subject of further directions today at 9.30am.  This was confirmed by letter incorrectly dated 5 September 2005 couriered to the applicant at his address for service at 5.24pm on Friday, 2 September 2005. 

3. The purported amended application dated 24 August 2005 suffers from the same vice as the original application in that it does not point to any jurisdictional error.  In the absence of any asserted jurisdictional error in the decision of the Refugee Review Tribunal, the jurisdiction of the Court is not properly engaged.  In addition, the amended application, like the original application, has no prospect of success in the absence of any asserted jurisdictional error. 

4. I have considered whether I should dismiss the judicial review application on account of the non‑appearance of the applicant today, on the basis that the applicant has not complied with my orders made on 18 July 2005, or on the basis that the judicial review application has no prospect of success.  Given the terms of order 2 made by me on 18 July 2005, on reflection I do not think it is open to me to dismiss the judicial review application on the basis of non-compliance with the earlier orders.  The effect of the earlier orders was to strike out the grounds of the existing judicial review application but the applicant had the opportunity, rather than the obligation, to file an amended application setting out proper grounds by 31 August 2005.  The attempt by the applicant to take advantage of that opportunity is ineffective.  The result is that the judicial review application fails to engage properly the jurisdiction of the Court and has no prospect of success. 

5. In these circumstances, I have decided that the appropriate course is to dismiss the application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules” and I will so order. I will order that the Refugee Review Tribunal be joined as the second respondent to the proceedings. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

6. Given that these orders were made in the absence of the applicant, I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of the orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 November 2005