SZDVW v Minister for Immigration

[2004] FMCA 1098

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVW v MINISTER FOR IMMIGRATION [2004] FMCA 1098

MIGRATION – Non-compliance.

Migration Act 1958

Applicant: SZDVW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1855 of 2004

Judgment of: Nicholls FM

Hearing date: 3 December 2004

Delivered at: Sydney

Delivered on: 3 December 2004

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Ms. A. Nanson

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. Application discussed pursuant to rule 13.03(2)(b) and rule 13.03A(c) of the Federal Magistrate Court Rules for non-appearance.

2. The applicant to pay respondent’s costs fixed at $1800 pursuant to rule 21.02(2)(a) of Federal Magistrate Court Rules.

3. Respondent to notify applicant of these orders and of Rule 16.05(2)(a) of Federal Magistrate Court Rules in seven days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1855 of 2004

SZDVW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. By application in this Court filed on 17 June 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 May 2004.  At the first Court date on 23 September 2004, the applicant appeared in person with the assistance of a Mandarin speaking interpreter.  The applicant signed short minutes of orders that subsequently became orders of the Court.

2. Relevantly:

   “Order 1. The applicant file and serve an amended application setting out in full the grounds relied upon together with any affidavit material to be relied upon on or before 23 October 2004.

   Order 2. If an amended application is not filed in accordance with Order 2 [sic: Order 1] above, the respondent may request that the Registry list the matter in a non-compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court.  Once listed the respondent to advise the applicant of the time, date and place of that listing.”

3. I have before me an affidavit of Angela Margaret Nanson, a solicitor in the employ of the respondent’s solicitors, and at annexure “A”, is a letter from the respondent’s solicitors to the applicant, [dated

   
   

   8 November 2004] advising the applicant the he had not filed an amended application and that the respondent was seeking summary dismissal on this basis.  It also notified the applicant of the proceedings today and was sent to the applicant’s address for service as notified on the applicant’s application to this Court. I also note that the address for service is also the applicant’s address as notified in the application, with copies sent to two other addresses provided by the applicant.  To date no amended application has been filed.

4. The matter was called outside this Court, and on level 6 of this building and in the foyer of this building and there was no appearance by the applicant.  I am satisfied that the applicant has had proper and adequate notice of today’s proceedings and has not appeared, nor provided any explanation for his inability to appear, and to take up the opportunity to explain the non-compliance with the Court’s orders.

5. In all the circumstances it is reasonable that the application be dismissed pursuant to Rule 13.03(2)(b) [Default in taking required step] and Rule 13.03.A(c) [Default of appearance], and that the respondent notify the applicant of the effect of Rule 16.05(2)(a) of the Federal Magistrate Court Rules.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: