SZNHU v Minister for Immigration & Anor (No.2)

[2009] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHU v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 589

MIGRATION – Visa – Protection (Class XA) visa.

PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment – where applicant had not attended Court on the hearing day – where applicant gave explanation for non-attendance.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001, r.16.05

SZNHU v Minister for Immigration & Anor [2009] FMCA 316

Applicant: SZNHU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 556 of 2009

Judgment of: Scarlett FM

Hearing date: 15 June 2009

Date of Last Submission: 15 June 2009

Delivered at: Sydney

Delivered on: 15 June 2009

REPRESENTATION

The  Applicant: In Person

Solicitor for the Respondents: Ms Dinihan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The First Respondent is to file and serve a Court Book by 30 July 2009.

2. The Applicant is to file and serve any amended application and affidavit in support by 10 July 2009.

3. The Applicant is to file and serve a short written outline of submissions by 17 July 2009.

4. The First Respondent is to file and serve a short written outline of submissions by 24 July 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 556 of 2009

SZNHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant has filed an application in a case and an affidavit.  He asks the Court to set aside an order made on 6 April 2009 by this Court dismissing his application for review of a decision of the Refugee Review Tribunal (SZNHU v Minister for Immigration & Anor[1]. 

   [1] [2009] FMCA 316

2. In his affidavit in support he says:

   1.  I am not represented by any solicitor therefore I am not fully aware of the legal consequence of this Court hearing.  Please consider the application in the light of above circumstance.

   2.  I could not attend the hearing on the - - -

3. And I cannot make out the next word and date.

   - - - because I did not see the hearing date written on my application.

4. What happened is that the applicant filed his original application and affidavit in support on 9 March 2009.  The first Court date was 30 March.  The applicant did not attend Court on that day.  I adjourned the matter until 6 April 2009 and directed the solicitor for the first  respondent to write to the applicant and inform him of the adjourned date.  I am satisfied that that direction was complied with.  I am since informed by Ms Dinihan, who appears for the Minister, that the letter was returned unclaimed.  On 6 April 2009 I dismissed the application due to the non-appearance of the applicant.  A copy of the decision was posted to the applicant at the address that he gave.  I note from the Court file that that document was returned unclaimed. 

5. The reason is quite clear; the applicant has given oral evidence today and it transpires that his street address is slightly different from the address appearing on all of his Court documents.  I will not reveal his address except to say that the street number, 220, which appeared on all the Court documents, was incorrect and he has told the Court in evidence that his address is 222.  He has told the Court that he does not read or write English and these documents were prepared for him by another person. 

6. I am therefore satisfied that the applicant did not receive the documents posted to him because of an error in the address that was placed on his documents.  Now it may well be said that this is entirely the fault of the applicant but in the circumstances, noting that he does not read or write English, it appears that he was placed in a difficult position by the person who prepared the documents for him and made a mistake in the address. 

7. I consider that the applicant should file a notice of address for service today setting out his correct address and I will list the application for final hearing at a suitable date in the near future. 

8. The applicant asks not only that the Court set aside the order dismissing his application but that the Court should set aside the costs order as well.  I am not prepared to set aside the costs order.  Far from it. The first respondent has acted appropriately in all of the circumstances and the error in the address came from the applicant or the applicant's friend and, in my view, the interests of justice require that the Court costs order should stand.

9. I will reserve the costs of today's hearing, which again has been brought about by the error in the applicant's documents.  It has not been brought about by any failing on the part of the first respondent.  I will allocate a hearing date and make the appropriate directions.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  12 August 2009