SZGTE v Minister for Immigration and Anor (No.2)

[2005] FMCA 1989

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGTE v MINISTER FOR IMMIGRATION & ANOR (No.2) [2005] FMCA 1989

MIGRATION – Review of decision by Refugee Review Tribunal – leave refused to file in Court further amended application

Migration Act 1958 (Cth), s.422B

Applicant: SZGTE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1847 of 2005

Judgment of: Emmett FM

Hearing date: 6 December 2005

Date of Last Submission: 6 December 2005

Delivered at: Sydney

Delivered on: 6 December 2005

REPRESENTATION

Counsel for the Applicant: Dr J. Azzi

Counsel for the Respondent: Mr G. Johnson

Solicitor for the Respondent: Ms A. Alex, Phillips Fox Lawyers

ORDERS

1. Application for leave to rely on Further Amended Application is rejected.

2. Adjourned judgment reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1847 of 2005

SZGTE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks leave to rely on a further amended application, which it acknowledges was filed out of time on 29 November 2005, together with written submissions in support of that further amended application. The 29 November was last Thursday and today is Tuesday. The applicant first filed in this Court on 13 July 2005 and on 4 August 2005 short minutes of order were signed by consent directing the applicant to file and serve an amended application by 27 October 2005 and written submissions in support of his application 14 days prior to the hearing.

2. On 7 September 2005 an amended application was filed in this Court and it is to that application that the respondent's outline of submissions is addressed. The respondent opposes the granting of leave to the applicant to rely on the further amended application on the basis that it is difficult to see the jurisdictional error alleged and that the application looks more akin to merits review. The respondent referred to an example of s.422B of the Act being ignored in the grounds identified in the application. (See extract of transcript attached and marked “A”.)

3. Dr Azzi who appears this afternoon for the applicant has informed the Court that he drew and filed the amended application on 7 September 2005 on behalf of the applicant. Dr Azzi submits that pressures of work have prevented him in being able to have a further amended application filed any earlier and proffers that excuse as his explanation for a failure to comply with the direction that submissions be filed 14 days prior to the hearing. Dr Azzi submits that he had agreed to appear pro bono and that he was endeavouring to assist both the applicant and the Court by his appearance.

4. I do not accept as an explanation the pressures of work upon Dr Azzi in circumstances where he has been instructed since at least September 2005, albeit pro bono. There has, to my mind, been ample opportunity to comply with the directions of the Court and to seek to file any further amended application in sufficient time to allow the respondent to properly prepare its response. It is even more imperative to this jurisdiction that timetables be adhered to to the fullest extent possible by legal representatives in circumstances where adjournments may mean that the Court is unable to deal with the matter for many, many months.

5. In balancing the interests of the applicant in having his further amended application being heard, I must balance the interests of the community in having finality to litigation and the review process, particularly in respect of administrative decisions. It is my view that there has been ample time for the applicant and for Dr Azzi to have prepared the applicant's case. I am satisfied that the further amended application raises many grounds that would require more than two full days notice to the respondent to consider and seek advice upon. For those reasons the application for leave to file the further amended application is refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  30 March 2006