NBBM v Minister for Immigration

[2006] FMCA 51

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 51

MIGRATION – Application for reinstatement of a judicial review application which was dismissed on account of the non-attendance of the applicant – insufficient explanation by the applicant for his non-attendance – no serious issue to be tried.

Applicant: NBBM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG879 of 2004

Judgment of: Driver FM

Hearing date: 23 January 2006

Delivered at: Sydney

Delivered on: 23 January 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr A Crockett
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application for reinstatement filed on 4 October 2005 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application filed on 4 October 2005, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG879 of 2004

NBBM

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking the reinstatement of a judicial review application.  The judicial review application sought review of a decision of the Refugee Review Tribunal (“the RRT”). On 5 September 2005 I dismissed that application on account of the non‑appearance of the applicant. 

2. The applicant relies upon his affidavit filed on 4 October 2005.  He was cross-examined on that affidavit.  The applicant says that he was not aware of the hearing on 5 September 2005.  The applicant says, and I accept, that this matter was originally listed for final hearing on 15 September 2005 but the date was changed to 27 September 2005.  The date was changed for a second time to 5 September 2005.  The applicant says that he was aware of the first change but not the second.  He says that he did not find out about the dismissal of his application until he telephoned the Court on 23 September 2005. 

3. The applicant says that he changed his address for service in or about September 2004.  He filed a notice of change of address for service on 20 September 2004.  It appears that he did not serve that notice of change on the Minister's solicitors with the result that they continued to use his outdated address for service.  However, the Court wrote to the applicant at his correct address for service on 20 January 2005.  In that letter my associate advised the applicant of the change of the hearing date to 5 September 2005.  That letter was returned to sender.  On the front of the envelope words are written indicating that the applicant did not live at the address for service.  The applicant was unable to give any explanation as to why that occurred.  The revised address for service provided by the applicant was apparently a shop.

4. In the circumstances it is open to question whether the address for service he gave was an appropriate one.  I say “appropriate” in the sense that an address for service needs to be an address where it is likely that correspondence will come to the attention of the applicant.  I am unpersuaded that the applicant has advanced a sufficient explanation for his non-attendance at court on 5 September 2005.  There is no logical reason why the letter was returned to sender from the Court if the address for service provided by the applicant was the correct and appropriate address.  It is also unclear why the applicant telephoned the Court to enquire about his case on 23 September 2005.  However, even if I were persuaded that a sufficient explanation for the non-attendance of the applicant has been advanced, and I am not, it would still be necessary for me to decide whether his application raised a serious question to be tried.

5. The original judicial review application filed on 16 February 2004 asserts error only in the most general terms.  The applicant filed an amended application on 6 May 2004 in which he simply disputed the merits of the RRT decision.  It was apparent from my reading of the RRT decision handed down on 13 January 2004 that his application before the RRT failed because he did not attend a hearing before the RRT and there was insufficient material before the RRT to enable a favourable decision to be made.  I see no basis upon which jurisdictional error in the RRT decision could have been asserted.

6. In the circumstances I dismiss the application for reinstatement filed on 4 October 2005. 

7. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $1,000.  This is in addition to the costs order made by me on 5 September 2005.  I am satisfied that costs of $1,000 have been reasonably and properly incurred in relation to the reinstatement application on a party and party basis.  The applicant referred to his impecuniosity but as has been repeatedly stated that is not a reason for the Court to refrain from making a costs order. 

8. I will order that the applicant pay the first respondent's costs and disbursements of an incidental to the application filed on 4 October 2005, fixed in the sum of $1,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 January 2006