SZGVX v Minister for Immigration

[2006] FMCA 250

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 250

MIGRATION – RRT – Indonesian applicant – failure to file application containing a ground of review – application dismissed for non-compliance.

Federal Magistrates Court Rules 2001,r.13.03(2)(b)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A

Applicant: SZGVX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2007 of 2005

Judgment of: Smith FM

Hearing date: 14 February 2006

Delivered at: Sydney

Delivered on: 14 February 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr A Cox

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed under Rule 13.03(2)(b) for failure by the applicant to comply with Order 1 made by the Court on 13 December 2005.

2. The applicant must pay the first respondent’s costs in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2007 of 2005

SZGVX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The application in this matter was filed on 28 July 2005. It identifies a decision of the Refugee Review Tribunal handed down on 26 July 2005 as a decision for which relief is sought under s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth). The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

2. In its decision, the Tribunal addressed a claim made by the applicant to fear persecution if he returns to his country of nationality, Indonesia, on the basis of various concerns he had about his safety.  The applicant had attended a hearing by the Tribunal and fully explained to it his circumstances.  The Tribunal assessed his evidence and said that it was not satisfied that he had a well founded fear of persecution for a Convention reason.   There is no apparent error in its reasons upon a superficial reading of them.

3. The application filed in this Court contains no grounds in support at all, and under the heading "The Applicant Claims" is written only:

   I enclose the RRT decision. 

   We are not happy with RRT decision because to me that decision are not fair. 

4. I can understand that the applicant might be disappointed by the outcome of his Tribunal decision, but he cannot win his case in this Court on that ground alone. 

5. His application was listed before me at the first Court date on

   
   

   30 August 2005.  The applicant appeared and had the assistance of an Indonesian interpreter.  I explained to him the limited nature of the Court’s jurisdiction, and I ordered him to file and serve an amended application identifying each ground of review relied upon, with complete particulars, by 25 November 2005.  I also directed him to file any affidavits by that date, and adjourned the proceedings for further directions on 13 December 2005. 

6. At the adjourned listing, the applicant again appeared and had the assistance of an Indonesian interpreter.  He had not filed any document in compliance with the previous directions, and I directed him again to file and serve an amended application identifying his grounds of review and any affidavits relied upon, by 3 February 2006.  I included in my orders a provision which said:

   If the applicant remains in default at the next listing, the first respondent may apply for the dismissal of the application under rule 13.03 without further notice to the applicant. 

7. I adjourned the proceeding to today, and gave a copy of my order to the applicant.  I am satisfied that the order was translated to the applicant, and that he has been on notice that the Minister would apply for the dismissal of his application if he did not file an amended application. 

8. He has not done so, and the Minister makes that application today. 

9. The applicant agrees that he has not been able to comply.  He told me that he has been “trying hard”, but has not been able to get help from any solicitors or the Legal Aid Commission.  I note that, somewhat belatedly, he was referred to a member of the free legal advice panel, and it is reasonable to assume that he has received unhelpful advice from that barrister. 

10. The applicant has been unable to show me any reason why I should allow the present proceeding to continue.  He has been given the fullest opportunity to raise an argument which might show jurisdictional error affecting the Tribunal’s decision, and has been unable to formulate any argument at all.  In all the circumstances, I think it is appropriate for me to make the order sought by the Minister under rule 13.03(2)(b).  That rule gives the Court power to "end the proceeding" where "a party fails … to comply with an order of the Court".  I shall therefore make that order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  24 February 2006