SZNVP v Minister for Immigration

[2009] FMCA 1294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1294

MIGRATION – Application out of time – applicant not attending.

Migration Act 1958, s.477(1)
Federal Magistrates Court Rules 2001

Applicant: SZNVP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1991 of 2009

Judgment of: Raphael FM

Hearing date: 16 December 2009

Date of last submission: 16 December 2009

Delivered at: Sydney

Delivered on: 16 December 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. The Applicant must pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1991 of 2009

SZNVP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter an application was filed with the court on 19 August 2009.  On 10 September 2009 the applicant attended before a Registrar when the matter was set down for hearing today at 2.15pm.  The applicant obtained the benefit of advice from the Minister’s scheme.  He did not file an amended application.

2. The application which was filed was filed outside the statutory period of 35 days contained in s.477(1) of the Migration Act 1958 (the “Act”) and therefore, the court would have to make a special order granting the applicant an extension of time.  In order to make that order the court would have to have some information as to the reasons why the applicant did not file his application within time.  The only reference to the extension of time is contained in the application where the applicant says:

   “I was living out of Sydney now, I could not understand English and I did not find friend to help me.  I could not give my documents of the court, so I pay my application fee now.”

3. The applicant has not sworn an affidavit and, interestingly enough, although he told the Tribunal that he was now living in Tamworth, and although he confirmed that he was not living in Sydney in the application, the address for service is an address in Belmore which the applicant had used all along.  In the absence of any evidence explaining in more detail why the applicant was unable to comply with the statutory requirements for filing this application I would dismiss it.

4. The matter came before me for hearing today. The applicant had not attended at 2.15pm and was still not in attendance when his name was called outside the court at 2.33pm. The application is therefore dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the FederalMagistrates Court Rules 2001. The Applicant must pay the First Respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  22 December 2009