SZAVG v Minister for Immigration
[2003] FMCA 468
•9 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVG v MINISTER FOR IMMIGRATION | [2003] FMCA 468 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application dismissed by registrar for non appearance – motion by applicant for the registrar’s order to be vacated – no appearance by applicant on hearing of the motion – motion dismissed. |
Federal Magistrates Court Rules 2001 (Cth)
| Applicant: | SZAVG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1146 of 2003 |
| Delivered on: | 9 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 9 October 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by the applicant
| Solicitors for the Respondent: | Ms R Roberts Sparke Helmore |
ORDERS
The applicant’s motion is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1146 of 2003
| SZAVG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application by the applicant in a proceeding to review a decision of the Refugee Review Tribunal (“the RRT”) to vacate orders made by a registrar of this Court on 20 August 2003, dismissing the application pursuant to order 10.01(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) for the non appearance of the applicant at a directions hearing. The relevant circumstances are set out in the Affidavit of Rebecca Kate Roberts, filed on 20 August 2003. Those circumstances were that the applicant failed to appear at a directions hearing on 14 August 2003 at approximately 2.15pm and the applicant had sent a facsimile to the registry indicating that he was sick and would not be attending the directions hearing.
The registrar stood over the matter for further directions at 2.15pm on 20 August 2003 and directed the respondent to notify the applicant of the adjourned date of the further directions hearing and of any application the respondent intended to make on that occasion. Ms Roberts further deposes that on 15 August 2003 a letter was sent to the applicant by express post envelope at the address for service nominated in the application for judicial review, which appears as Annexure C to her affidavit. In that letter, the respondent's solicitors informed the applicant of the further directions hearing and warned him that he was required to attend and that if he did not attend, the respondent would seek orders that his application be summarily dismissed with costs.
The applicant filed an affidavit on 5 September 2003 stating that he was sick at the time of the first directions hearing and that he received what he calls a second letter notifying him that his application was dismissed on 26 August 2003. He requests that the dismissal be reversed. Ms Roberts has tendered a letter dated 21 August 2003 addressed to the applicant at his residential address informing him of the dismissal of his application on 20 August 2003 by the registrar. That is, I assume, the second letter referred to by the applicant.
The applicant did not appear at the hearing this afternoon, although the matter was called twice at 4.05pm and 4.10pm. There is no explanation for the non appearance by the applicant this afternoon. The fact that the applicant refers to a second letter in his affidavit indicates that there was a first letter. It is logical that that first letter may have been the letter dated 15 August 2003 addressed to the applicant at his address for service.
There is a curiosity about the original application filed by the applicant on 24 June 2003, in that although he gives a post office box as his address for service on the front page of the application, but the post office box address is ruled through and his residential address is given. I do not know why or when that was done. It was up to the applicant to satisfy me in the proceedings today that I should set aside the orders made by the registrar on 20 August 2003. If the applicant had appeared this afternoon he may have been able to say something to cause me to do so. However, on the state of the material before me I am not persuaded that there is any reason for me to disturb the orders made by the registrar on 20 August 2003 and I will not do so. I will therefore dismiss the application.
I will allow costs in the sum of $1,000. I will order that the motion by the applicant be dismissed and that the applicant pay the respondent's costs and disbursements of and incidental to the motion, which I fix in the sum of $1,000.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 October 2003
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