SZCOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 175

FEDERAL COURT OF AUSTRALIA

SZCOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 175 MIGRATION – No point of principle. SZCOZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1927 OF 2004 MOORE J 18 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1927 OF 2004

BETWEEN: SZCOZ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 18 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. The costs be fixed in the sum of $1000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1927 OF 2004

BETWEEN: SZCOZ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 18 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT (Ex Tempore – Revised) 1 This is an application for leave to appeal from a judgment of a Federal Magistrate of 1 December 2004 dismissing an application to set aside orders earlier made dismissing the application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 17 December 2003. The orders sought to be set aside in the application filed on 6 October 2004 had been made by the Federal Magistrate in the absence of the applicant on 6 September 2004 for default of compliance with an order for service of the amended application and for default of appearance in court on 6 September 2004. 2 The applicant is a citizen of India. He arrived in Australia on 27 June 2003. He lodged an application for a protection visa (Class XA) on 21 July 2003. On 15 September 2003 a delegate of the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa. On 2 October 2003 the applicant applied to the Tribunal for review of that decision. The applicant did not attend the hearing before the Tribunal. On 17 December 2003 the Tribunal affirmed the decision of the delegate not to grant the visa. The applicant filed an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) in the Federal Magistrates Court for review of the Tribunal's decision on 29 January 2004. 3 On 28 May 2004 Registrar Hedge made orders by consent that, amongst other things, the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant by 9 July 2004. The Registrar also made an order that the matter may be listed in the non-compliance list before a Federal Magistrate if the applicant did not comply with the order referred to above. The applicant elected to take part in the "RRT Legal Advice Scheme (NSW)". On 25 June 2004 the Federal Magistrates Court Registry allocated the applicant a lawyer from the panel list. That lawyer was informed in writing of the direction that the applicant file an amended application by 9 July 2004 and the details of what the scheme involved, which included meeting with the applicant and providing advice and any amended application as soon as possible. A copy of his original application was enclosed. 4 The legal practitioner for the applicant confirmed, on 2 July 2004, that he had given the applicant advice by post. An amended application was filed on 9 July 2004. However, the applicant failed to serve it on the respondent. The essence of the amended application was that: The member of the Tribunal was misleading in determining that skills, knowledge and ability to relocate in India were the part of the refugee definition as defined under UN Convention. In fact it was a fear of persecution on the conventional grounds which should have been the key factor in assessing the relocating in India rather than the applicant's skills, knowledge and ability to relocate in India. 5 The matter was listed for directions on 6 September 2004. The Minister advised the applicant of this hearing more than a month before hand. The applicant did not appear and the Federal Magistrate dismissed his application for default of compliance with the order for service of the amended application made on 28 May 2004 and for default of appearance that day. On 6 October 2004 the applicant filed what was effectively a notice of motion setting aside the orders made in his absence. This was accompanied by an affidavit saying that the applicant did not speak, read or write English and that his lack of understanding of English led him to fail to comply with the order for service of his amended application. The Federal Magistrate heard this motion on 1 December 2004.