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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application for reinstatement of a judicial review application dismissed for non appearance and for default of compliance with a court order - applicant advancing insufficient explanation for his non attendance - reinstatement application dismissed.

SZCOZ v Minister for Immigration [2004] FMCA 914 (1 December 2004)

SZCOZ v Minister for Immigration [2004] FMCA 914 (1 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCOZ v MINISTER FOR IMMIGRATION
[2004] FMCA 914




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application for reinstatement of a judicial review application dismissed for non appearance and for default of compliance with a court order - applicant advancing insufficient explanation for his non attendance - reinstatement application dismissed.




Applicant:
SZCOZ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG224 of 2004




Delivered on:


1 December 2004




Delivered at:


Sydney




Hearing date:


1 December 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms B Rayment

Sparke Helmore




INTERLOCUTORY ORDERS

(1) The application filed on 6 October 2004 is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG224 of 2004

SZCOZ



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTRUAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an application filed on 6 October 2004 seeking orders that I set aside orders I made in the absence of the applicant on 6 September 2004. On 6 September 2004 I ordered that a judicial review application filed on 29 January 2004, and amended on 9 July 2004, be dismissed for default of compliance with an order for service of the amended application and for default of appearance in court on 6 September 2004. I also ordered the applicant to pay the respondent Minister's costs fixed in the sum of $1,200.

2. The application I have before me is, in effect, an application for reinstatement of the judicial review application. The application is supported by an affidavit by the applicant made on 4 October 2004. In that affidavit the applicant says that he does 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.

3. The applicant also deposes that he did not understand that he was required to attend court on 6 September 2004. The application for reinstatement is also supported by written submissions that the applicant told me were prepared with the assistance of a friend. The submissions follow a pattern with which the Court is familiar. They make very little sense in the context of these proceedings.

4. I asked the applicant to explain why he failed to attend court on 6 September 2004. He acknowledged that he had received a letter dated 2 August 2004 from the Minister's solicitors advising him of the need to attend court on 6 September 2004. He could not recall when he received that letter. He told me from the bar table that he did not understand the letter because of his lack of English. By the time he took the letter to someone who could explain it to him, the hearing date had passed. The applicant also told me that he did not understand that he was required to serve a copy of his amended application on the solicitors representing the Minister. I readily accept that the applicant, who is a man without any apparent legal training and with little or no understanding of English, did not understand the need to serve his amended application on the Minister's lawyers. That default would in ordinary circumstances be excused.

5. The failure by the applicant to attend court on 6 September 2004 is a more serious matter. The applicant should have received the solicitor's letter well in advance of the hearing date. He should have had plenty of time to have it explained to him. The applicant's judicial review application was a very important matter for him. He should have asked promptly to have the letter explained to him.

6. I am not satisfied that the applicant acted sufficiently promptly to have the letter explained to him. In the circumstances, I am not persuaded that the applicant has advanced a sufficient explanation for his non attendance at court on 6 September 2004.

7. Even if I could be persuaded to excuse the applicant's non attendance at court on that day I would still not set aside my dismissal order. That is because I do not consider that the judicial review application as amended raises a serious issue to be tried. The amended application in my view is simply a dispute with the merits of the RRT decision. The RRT was unable to make a decision in the applicant's favour because he had advanced insufficient material to support his visa application. The applicant was warned of the likely outcome before the RRT by letter dated 5 December 2003 but still failed to attend a hearing before the RRT. In the circumstances, the outcome before the RRT was inevitable.

8. I dismiss the application filed on 6 October 2004.

9. Ms Rayment seeks an order for costs of the reinstatement application fixed in the sum of $600. The applicant did not wish to make any submissions on costs. The amount of $600 sought is modest in the circumstances. I am satisfied that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant pay the Minister's costs and disbursements of an incidental to the application filed on 6 October 2004, fixed in the sum of $600.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 December 2004
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