Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant seeking reinstatement of judicial review application following dismissal for non appearance and failure to comply with court order - applicant providing a reasonable excuse for non attendance but no reasonable excuse for non compliance with the earlier order - reinstatement application dismissed.

SZBIA v Minister for Immigration [2004] FMCA 922 (1 December 2004)

SZBIA v Minister for Immigration [2004] FMCA 922 (1 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBIA v MINISTER FOR IMMIGRATION
[2004] FMCA 922




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant seeking reinstatement of judicial review application following dismissal for non appearance and failure to comply with court order - applicant providing a reasonable excuse for non attendance but no reasonable excuse for non compliance with the earlier order - reinstatement application dismissed.




Federal Magistrates Court Rules 2001 (Cth)

Applicant:
SZBIA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1726 of 2003




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:


Mr A Bockwinkel

Australian Government Solicitor




INTERLOCUTORY ORDERS

(1) The application for reinstatement filed on 15 October 2004 is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application filed on 15 October 2004, fixed in the sum of $600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1726 of 2003

SZBIA



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an application filed on 15 October 2004 seeking orders that I set aside orders made on 6 September 2004. Those orders were made in the absence of the applicant and the application before me is made pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules"). On

6 September 2004 I dismissed an application for judicial review that had been filed by this applicant on 25 August 2003. The dismissal came about for reasons of non-compliance with earlier court orders and because the applicant failed to appear. The present application for re-instatement of the judicial review application is supported by an affidavit by the applicant made on 15 October 2004.

2. The applicant deposes that he is a genuine refugee. He deposes that he understood that he was required to attend court on 30 March 2005. He deposes that he changed his address and advised both the Minister's department and the Court. He deposes that he did not receive any correspondence from the Court. The applicant was not required for cross-examination, however, I asked him a number of questions which he answered from the bar table. I noted that the applicant had filed a notice of change of address for service form on 16 November 2004. The applicant told me that this was his second relevant change of address.

3. The applicant told me that he had earlier changed his address from the address which appeared on his original judicial review application to the address of 4/48 Albion Street, Surry Hills. The applicant showed me another notice of change of address for service form which I accepted as an exhibit (exhibit A1). The document does not bear the Court's seal and it is apparent that it has not been filed. The applicant told me that he faxed the document to the court to the fax number 92308295. I have confirmed that that is a facsimile number in the court registry. The applicant told me that he faxed the notice of change of address to the Court on or about 12 March 2004.

4. I asked the applicant why the form was dated 8 December 2003. He told me that he had contemplated the change of address at that time but there was a delay. The applicant also told me that he did not get any transmission receipt for the facsimile transmission. He told me that he had sent the document by facsimile from an internet cafe. The applicant told me that the only correspondence he received in relation to his judicial review application was a letter from the Minister's solicitors dated 4 November 2003. That letter enclosed the green court book. He denies receipt of letters from the Minister's solicitors dated 31 May 2004 and 28 July 2004.

5. On the basis of the applicant's affidavit and what he told me from the bar table, he had by May 2004 changed address and the correspondence referred to above was sent to his old address. The applicant told me that he did not inform the Minister's solicitors of that change of address and was not aware that he needed to. Mr Bockwinkel, for the Minister, told me that no correspondence sent to the applicant was returned. The applicant told me that the people who moved into his address where he was living when he filed his original application had themselves moved out. The applicant did not arrange for his mail to be forwarded by the post office to his new address.

6. It is strange that there is no record of the facsimile the applicant says he sent to the Court on 12 March 2004. It is possible that he sent the facsimile and it did not transmit properly. It is also possible that the facsimile was sent and received but somehow mislaid in the court registry. It is also possible that the applicant made up the story and created the notice of change of address for service form recently. The form is in the same format as that filed by the applicant on 16 November 2004. I am unable to say on the basis of the available material before me that the applicant is lying. The applicant was foolish in not making a proper arrangement for his mail to be forwarded on to him when he changed address. Nevertheless, on the basis that what he has told me is true, that would be a reasonable explanation for his non attendance at court on 6 September 2004.

7. However, there are other reasons why the applicant's judicial review application should not be reinstated. The first of those is that the applicant failed to comply with an order made by consent on 13 November 2003 that he file and serve an amended application setting out in full the grounds relied upon together with any affidavit material to be relied upon on or before 2 February 2004. When I asked the applicant why he did not comply with that order, he said that he intended to comply by the time he attended court on 30 March 2005. When I pressed him as to why he did not comply by 2 February 2004, he said that he had nothing to add to his original judicial review application. That is notwithstanding that in paragraph 6 of that application, the applicant indicated that more material would be forthcoming later. The application, while it sets out purported grounds of review, is meaningless in the absence of particulars and evidence. On its face, the judicial review application did not raise a serious question to be tried. More was required.

8. The applicant was given ample time to provide particulars and evidence. He did not comply. That failure to comply, in the circumstances, was sufficient justification for the dismissal of his judicial review application on 6 September 2004. In addition, the applicant's statement to me that he could not usefully add to that judicial review application leads me to the view that the application would, in any event, be doomed to fail. In the circumstances, there is not a serious question to be tried.

9. I will therefore dismiss the application for reinstatement filed on 15 October 2004.

10. On the question of costs, the application for reinstatement having been dismissed, Mr Bockwinkel seeks costs of that application fixed in the sum of $600. I am satisfied that costs of at least that order would have reasonably and properly incurred on behalf of the Minister. The applicant referred to his impecuniosity but that is not a reason for the court to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application filed on 15 October 2004, fixed in the sum of $600.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 December 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia