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MIGRATION - Application by respondent Minister for summary dismissal - where amended application for judicial review failed to particularise claims of jurisdictional error - whether application should be dismissed for failing to comply with orders of the Court.

SZCSN v Minister for Immigration [2004] FMCA 851 (5 November 2004)

SZCSN v Minister for Immigration [2004] FMCA 851 (5 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCSN v MINISTER FOR IMMIGRATION
[2004] FMCA 851




MIGRATION - Application by respondent Minister for summary dismissal - where amended application for judicial review failed to particularise claims of jurisdictional error - whether application should be dismissed for failing to comply with orders of the Court.




B41 of 2003 v MIMIA [2004] FCA 30

Applicant:
SZCSN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 394 of 2004




Delivered on:


5 November 2004




Delivered at:


Sydney




Hearing date:


5 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in Person




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Application dismissed for failure to comply with the orders of the Registrar pursuant to Part 13 Rule 13.03(2)(b) of the Federal Magistrates Court Rules.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application fixed in the amount of $900 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 394 of 2004

SZCSN



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is an citizen of the Peoples Republic of China who arrived in Australia on 19 February 2003. On 19 March 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 March 2003 a delegate of the Minister refused to grant him a protection visa and on 23 April 2003 he applied for review of that decision from the Refugee Review Tribunal. On 16 December 2003 the Tribunal affirmed the decision of the delegate. The applicant then filed an application for judicial review in the Federal Magistrates Court on 17 February 2004.

2. At a directions hearing before Registrar Hedge on 17 June 2004 the Court ordered that the applicant file and serve an amended and particularised application by 29 July 2004. On 1 September 2004 solicitors for the respondent Minister notified the applicant of their intention to have the matter placed into the non-compliance list to have the matter summarily dismissed pursuant to Part 13 Rule 13.03(2)(a) of the Federal Magistrates Court Rules. On 26 October 2004, the applicant filed an amended application. The terms of the amended application were as follows:

I am a member of Catholic Church in China. However, my church was not registered under the supervision of the Chinese government. Some of our church members were jailed for a few years. I left China for my religious freedom. I have stated all my detailed reasons when I lodged my review with the RRT. But RRT still maintain the decision that I am not a refugee.

1. I have a genuine intention to remain in Australia to practice my faith to God;

2. The RRT has reached an incorrect finding;

3. RRT failed to protect me from being persecuted by the Chinese Government because their decision will send me back to China. Consequently, my safety won't be ensured. The RRT should comply with the Migration Act 1958.

3. The applicant's claim was considered by the Tribunal in its decision and reasons for decision found between [CB 52] - [CB 59]. This reveals that the Tribunal did not have the benefit of the applicant's attendance. Consequently, the Tribunal was unable to be satisfied that the applicant had a well founded fear of persecution for a Convention reason. The applicant's claim does not clearly point to any jurisdictional error, neither does the amended application. I asked the applicant whether he could tell me of any jurisdictional error which he would allege in respect of the Tribunal's decision, but he was unable to articulate one.

4. What he did tell me was that he had been advised very late or not at all by his migration adviser concerning the hearing. In B41 of 2003 v MIMIA [2004] FCA 30 Dowsett J said at [25]:

"In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness."

5. In the circumstances, I do not see that there is any benefit to the applicant or the administration of justice in allowing this matter to proceed further. I dismiss the application for failure to comply with the orders of the Registrar pursuant to Part 13 Rule 13.03(2)(b) of the Federal Magistrates Court Rules. I order that the applicant pay the respondent's costs and disbursements of and incidental to the application fixed in the amount of $900 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: 22 November 2004
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