SZCLD v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLD v MINISTER FOR IMMIGRATION [2004] FMCA 690

MIGRATION – Motion for reinstatement of judicial review application – application dismissed due to non-appearance by the applicant – insufficient reasons advanced by the applicant for reinstatement – motion dismissed.

Applicant: SZCLD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG66 of 2004

Delivered on: 7 October 2004

Delivered at: Sydney

Hearing date: 7 October 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The motion is dismissed.

2. The judicial review applicant is to pay the respondent’s costs and disbursements of and incidental to the application for judicial review and the motion, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG66 of 2004

SZCLD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a motion of which notice was given on 6 September 2004 by the applicant, seeking reinstatement of an application for judicial review which I dismissed for non-appearance on 16 August 2004.  The circumstances are that the judicial review application was placed in a non-compliance list on 16 August 2004 because of the failure of the applicant to comply with an order of the Court made by a Registrar on 2 April 2004, requiring an amended and fully particularised application to be filed by 14 May 2004.  At that hearing before the Registrar the applicant was legally represented.  He remained legally represented until late June 2004 when his solicitor ceased acting for him.  The affidavit of the solicitor, filed on 6 July 2004, deals with that cessation to act.

2. In the meantime the solicitors for the Minister had sent two letters to the applicant's solicitor warning of the likely consequences of non‑compliance.  The second of those letters advised that the matter had been placed in the non-compliance list at 2.15pm on 16 August 2004. 

3. The applicant initially denied in evidence ever having received either of the letters sent by the respondent's solicitors to his own solicitor and denied any knowledge of the Court fixture on 16 August 2004.  Subsequently, he retreated from that position and admitted that he was aware of the date but denied being aware of the time.  When pressed on the issue he admitted that he had himself formed the view that if he filed an amended application prior to 16 August 2004 he would not have to attend court.  That was both a bold and a false assumption.

4. What the applicant did was to file an affidavit on 12 July 2004 to which was attached an unsigned and undated form of amended application.  It is not my practice to read files prior to matters coming before me on a non-compliance list and I did not read the affidavit on 16 August 2004.  In the circumstances, I was not at that time aware that there…