SZIKW v Minister for Immigration

[2006] FMCA 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKW & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 564

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – interlocutory dismissal of application as disclosing no arguable basis for the order sought.

Federal Magistrates Court Rules 2001 (Cth)

First Applicant:

Second Applicant:

Third Applicant:

SZIKW

SZIKX

SZIKY

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG615 of 2006

Judgment of: Driver FM

Hearing date: 19 April 2006

Delivered at: Sydney

Delivered on: 19 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Carter
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG615 of 2006

SZIKW

First Applicant

SZIKX

Second Applicant

SZIKY

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 21 February 2006.  The application was filed on 27 February 2006.  The application was plainly filed within time.  The application is in part defective in that it seeks relief also in relation to the decision of the delegate which was reviewed by the RRT.  It also seeks orders in relation to the notification of the delegate's decision. To that extent, the application is incompetent.  However, the application is competent to the extent that it seeks relief in relation to the RRT decision.

2. The application asserts seven grounds of review, but provides no particulars.  In the absence of particulars I was unable at the first court date to determine whether an arguable case may be disclosed.  Accordingly, when the matter came before me on 30 March 2006, I ordered a show cause hearing before me today.  I gave the applicants until 18 April 2006 to file and serve on the respondents any affidavit containing evidence on which they wish to rely and any amended application on which they wish to rely.  I also gave the applicants until 18 April 2006 to provide any statement of particulars of the existing grounds in the application.  I also gave the parties the opportunity to file legal submissions by 18 April 2006.  No affidavit evidence, no amended application and no statement of particulars has been filed.  The applicants have taken the opportunity to file written submissions. 

3. The Minister relies upon her response filed on 14 March 2006.  The first applicant complains that he has not had sufficient time or sufficient assistance to prepare for today's hearing.  It is true that the time available to them has been limited.  However, migration proceedings in this Court, like any proceedings, should not be instituted on a purely speculative basis.  It is not acceptable to commence wholly unsupported litigation and then expect time to be made available to suit the applicants’ convenience in order to provide some coherent basis for the litigation.  The grounds in the application were formulaic in nature and meaningless in the absence of particulars.

4. The written submissions filed by the applicants on 18 April 2006 are also formulaic in nature.  In part, they bear no relationship to the application at all.  To the extent that some link can be found between the submissions and the application, it is not very informative.  If the grounds in the application illuminated by the written submissions were to have any arguable basis, some evidence in support of them would have been required.  The only evidence I have before me is the court book filed on 23 March 2006.  That provides no support to the bald assertions made by the applicants.

5. I conclude that the application fails to disclose an arguable case. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”).

6. The application having been dismissed, costs should follow the event.  The Minister seeks costs in accordance with the Federal Magistrates Court scale.  The court scale provides for costs in the sum of $2,500 in this circumstance.  The first applicant is concerned about his capacity to pay, but that is not a reason for the Court to refrain from making a costs order. 

7. I will order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  26 April 2006