SZNBU v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBU v MINISTER FOR IMMIGRATION [2005] FMCA 490

MIGRATION – Application to set aside dismissal for non–appearance. 

Taylor v Taylor (1979) 143 CLR 1
Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448

Applicant: SZNBU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2029 of 2003

Judgment of: Barnes FM

Hearing date: 5 April 2005

Delivered at: Sydney

Delivered on: 5 April 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2029 of 2003

SZNBU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 23 March 2005 pursuant to Rule 16.05 of the Federal Magistrates Court Rules seeking that an order dismissing the applicant's application for review of a decision of the Refugee Review Tribunal be set aside.

2. The background to this application is that the Tribunal handed down a decision on 10 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant filed an application seeking review of that decision in this court on 1 October 2003. 

3. He attended a directions hearing on 28 January 2004, with the assistance of a Nepalese interpreter.  Orders were made by consent, including an order that he file and serve any amended application and any affidavit material he intended to rely on by 3 March 2004; that he file and serve written submissions five clear working days prior to the hearing; and that the matter be listed for hearing at 2:15pm on
   22 March 2005.  However, he did not file and serve any amended application or any affidavit material.

4. Subsequently, a notice of motion was filed by the respondent on
   1 December 2004, seeking orders that the proceedings be dismissed pursuant to Rule 13.10(a) as disclosing no reasonable cause of action.  The notice of motion was listed for hearing at 10:15am on 16 February 2005. 

5. A solicitor for the respondent filed an affidavit on that date, annexing a copy of a letter sent to the applicant on 6 December 2004 serving the notice of motion and an accompanying affidavit, and advising him of the listing at 10:15am on 16 February 2005.  The letter noted that should the applicant fail to attend the respondent would seek to have the matter dismissed and an order for costs. 

6. A file note records that the solicitor for the respondent called the Federal Court Registry to check the applicant’s address for service.  
   At this time the applicant’s address for service was the address on the original application and this was the address to which the letter was sent. 

7. There is nothing on the court file to suggest that at that time,…