SZHIK v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 370

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC arising out of dispute with local authority over the payment of money – applicant failed to appear at hearing – abuse of process – 5 years delay in filing in the Federal Magistrates Court of Australia.

SZBXA v Minister for Immigration [2004] FMCA 96

Applicant: SZHIK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2944 of 2005

Judgment of: Emmett FM

Hearing date: 2 February 2006

Date of Last Submission: 2 February 2006

Delivered at: Sydney

Delivered on: 2 February 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the First Respondent: Ms A. Nanson, Australian Government Solicitor

ORDERS

1. That the application before this Court is dismissed.

2. That the Applicant pay the First Respondent's costs in an amount of $3323.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2944 of 2005

SZHIK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the First Respondent to dismiss an application filed in this Court by the Applicant on 13 October 2005.  The First Respondent relies on the affidavit of Angela Margaret Nanson, sworn

   
   

   7 November 2005. That affidavit discloses that, on 4 May 2000, the Refugee Review Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant’s application for the protection visa arose out of the Applicant’s claim of a dispute with a local authority over the payment of money. The Tribunal found that the Applicant's claim lacked the relevant Convention nexus in order to demonstrate that he was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.

3. Following the Tribunal’s decision, the Applicant filed an application for review in the Federal Court of Australia on 5 June 2000.

4. On 27 June 2000, the Applicant appeared before the Registrar of the Federal Court and the matter was set down for hearing before Hely J on 4 August 2000. The Applicant failed to appear on 4 August 2000, and Hely J, being satisfied that the Applicant was aware of the date of the hearing, dismissed the application. 

5. The Applicant submitted to this Court that he was not prepared to attend the hearing before Hely J without the assistance of his migration agent and that he was unable to find him on the day. Without making comment in respect of that submission as to its accuracy or otherwise, the relevant factors are that he was aware of the hearing and chose not to attend.  He has then done nothing, or, there is no evidence before me, of any proactivity by the applicant since 4 August 2000.

6. Five years later, on…