SZBFX v Minister for Immigration

[2005] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFX v MINISTER FOR IMMIGRATION [2005] FMCA 323

MIGRATION – Review of RRT decision – where applicant failed to attend court hearing – where applicant claimed when telephoned on the day of the hearing that he did not receive letters notifying him of the hearing date – whether matter should be summarily dismissed.

Applicant: SZBFX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1644 of 2003

Judgment of: Raphael FM

Hearing date: 9 March 2005

Delivered at: Sydney

Delivered on: 9 March 2005

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Ms R Pepper

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1644 of 2003

SZBFX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant filed his original application on 18 August 2003.  At that time he was living at an address in Fairfield.  The case went to a directions hearing on 5 April 2004 and the applicant was required to file and serve an amended application and an affidavit in support on or before 11 May 2004.  The applicant on 12 May 2004 filed an amended application and an affidavit which bore the date of 10 May.  There was some doubt as to whether or not the applicant's apparent failure by one day to comply with the orders of the Registrar brought into effect her self-executing order number 5 which is in the following terms:

   “If the applicant fails to comply with orders 1, 2 or 3 the application is dismissed by force of these orders with costs fixed in the sum of $1,650.”

2. Some time in February I was advised by my associate that this matter remained in the list for hearing today but she had heard that there was some suggestion that the case would not proceed because it had been dismissed by virtue of the orders referred to.  No orders have been taken out by the respondent's solicitors and given that the applicant was only one day late in complying with the orders I determined that the case should be heard.

3. As a result a letter was written by my associate to the solicitor for the respondent on 8 February 2005 and on the same day a letter was written to the applicant at the address which he had given in the amended application and affidavit.  The hearing date, the time and the location were all specified.  On 11 February 2005 a further letter was written this time by the respondent's solicitors to the applicant and sent by express post.  That letter also indicated when the hearing date would be and the place.  Finally, on 2 March 2005 the respondent's solicitor served upon the applicant by express post a copy of their counsel's written submissions and again reiterated the address, time and date of the hearing.  None of the letters to which I have referred have been returned.

4. Today, at 2.30pm the applicant was not in attendance.  However, Ms Gogina the interpreter was.  She was asked to telephone the applicant to see whether he was in.  She did this and the applicant told her that he had not received any of the letters referred to and was not aware of the hearing date.  He said that the matter was in the hands of his migration agent.  However, no notification as referred to in these reasons was sent to the migration agent.

5. When I came on the bench at approximately 2.40p.m.I determined that, with the assistance of the interpreter, the hearing could be conducted at the telephone. I asked the interpreter to telephone the applicant again but when she did this there was no response and the telephone had been switched to an answering service.

6. The telephone number which Ms Gogina rang was a mobile telephone number and one can assume that the applicant would carry that telephone with him and leave it on in most circumstances.  It would not be unreasonable for me to draw an inference from the fact that Ms Gogina reported that the telephone had been switched to the answering mode that the applicant did not wish to be telephoned on that number again by the Court. 

7. In all the circumstances I believe that the appropriate course of action to take in this case is to dismiss the proceedings pursuant to the provisions of Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules noting that the applicant would be able to make an early application for reinstatement, provided that he was able to convince the court that he had a genuine reason for not being aware of the hearing today and that in all the circumstances there would be some utility in restoring the matter for hearing and that some arguable case could be made that the Tribunal had strayed into jurisdictional error in the manner in which it came to its decision.

8. I dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date:  21 March 2005