SZBBO v Minister for Immigration (No.1)

[2003] FMCA 606

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBO v MINISTER FOR IMMIGRATION (No.1) [2003] FMCA 606

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether adjournment should be granted – self-executing orders.

Applicant: SZBBO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1491 of 2003

Delivered on: 8 October 2003

Delivered at: Sydney

Hearing date: 8 October 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Mr B Dennis

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the hearing be adjourned until 2:15pm on Friday, 5 December 2003.

2. That the applicant file and serve an amended application and also any evidence on which he wishes to rely by Wednesday, 19 November 2003 provided that if in the event of non-compliance with this order, the application shall be dismissed.

3. That the applicant file and serve written submissions five working days prior to the hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1491 of 2003

SZBBO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter was listed for hearing today.  The applicant’s solicitor, who received telephone instructions on 4 October 2003, seeks an adjournment.  He has filed an affidavit in relation to the application. 

   
   

   I have had regard to what both legal representative have to say in relation to the application for an adjournment.  No proper grounds are raised in the application for review filed in this matter as conceded by the solicitor for the applicant.  This is one of the things that is sought to be addressed by representation for the applicant and an adjournment.  The solicitor for the applicant will then have an opportunity to consider whether there are arguable grounds for review contrary to the submissions of the respondent. 

2. I am also conscious of the fact that the applicant in this case is in detention.  It appears from the material before the court that in a directions hearing on 13 August 2003 the matter was listed for hearing on 18 August 2004 and that the respondent was to seek an earlier hearing date if the applicant was not released from detention.  On

   
   

   29 August 2003 the respondent sent relevant documents to the applicant by letter which referred to the 2004 hearing date.  Subsequently the matter was re-listed for hearing on 8 October 2003.  According to the applicant’s solicitor the respondent’s solicitor notified the applicant of this by letter of 3 October 2003 and he had only one working day to arrange legal representation. 

3. In fact the court advised the applicant of the changed hearing date by letter of 2 September 2003.  The solicitor for the applicant suggested that the applicant did not receive the letter from the court of

   
   

   2 September 2003 although it appears to have been sent to the correct address the detention centre.  The respondent has filed and served written submissions and instructed counsel to appear today. 

4. On balance, I consider that as it does not appear that the applicant, who is in detention, has had the opportunity to obtain legal advice in this case (even through the pilot advice scheme) and as he now has legal representation an adjournment is appropriate. 

5. However, while I am prepared to adjourn the hearing until 5 December 2003, what I would require is that the applicant file an amended application and any evidence on which he relies by a specified date. 

   
   

   I would expect such amended application to fully particularise the grounds on which he relies. 

6. I propose to impose a time limit.  In the circumstances of this matter, where an adjournment has been granted and an amended application is required it is appropriate to make the orders self executing.  If no amended application is filed then the application will be dismissed without the need for a further hearing. 

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 October 2003