SZOYW v Minister for Immigration
[2011] FMCA 375
•23 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOYW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 375 |
| MIGRATION – Application for reinstatement of judicial review application – dismissal on account of the non appearance of the applicant. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZOYW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 163 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 23 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Stone DLA Piper Australia |
INTERLOCUTORY ORDERS
The Application in a Case filed on 6 April 2011 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 163 of 2011
| SZOYW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 22 February 2011, I made orders dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal), pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
I made that order in consequence of the non‑appearance of the applicant at a hearing on his application for judicial review. I also ordered the applicant pay the Minister’s legal costs, fixed in the sum of $500, and directed the Minister to arrange to have the orders entered, and for the Minister to cause a sealed copy of the orders to be served on the applicant by ordinary pre-paid post at his address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
Rule 16.05 of the Federal Magistrates Court Rules permits an applicant, the subject of an order made in his absence, to apply to have the order set aside. On 6 April 2011, the applicant filed an Application in a Case seeking the reinstatement of his judicial review application. The application is supported by an affidavit filed on the same day, which I received. The affidavit is in part, assertions of fact, and in part a statement of submissions. I also received as an exhibit[1] a letter dated 23 February 2001 from the Minister’s solicitor to the applicant at his address for service, sent in compliance with order 3 made by me on
22 February 2011.
[1] Exhibit R1
The applicant seeks the vacation of the orders made on 22 February 2011 on account of his assertion that he was sick on that day and unable to attend court. There is no medical evidence to support that assertion but the assertion is uncontested. I am prepared to accept that the applicant was unwell on the day of the hearing on 22 February 2011. There has been a significant delay since that time, before the applicant filed his present Application in a Case for reinstatement. The applicant tells me that some time in March 2011 he attended Court and was provided with information which stimulated his present application.
The applicant’s explanation for the delay in seeking to have the orders made on 22 February 2011 is, in my view, inadequate. It appears that the applicant’s ailment on that day was a temporary one. I think it likely that the applicant received the letter dated 23 February 2011 sent to him by the Minister’s solicitors. I think it likely that the applicant knew before the end of February that the substantive application had been dismissed with costs. The applicant speaks English and the correspondence should have been understandable to him.
In addition, I do not think that the judicial review application gives rise to a serious question to be tried. The applicant failed before the Tribunal because he did not attend a hearing to which he was invited on 7 January 2011. The applicant responded to the hearing invitation sent to him, stating that he would not attend. That invitation alerted the applicant to the fact that the Tribunal could not make a favourable decision on the papers. It should have been apparent to him that his review application before the Tribunal was likely to fail as a consequence of him declining the hearing opportunity that was afforded to him. In my view, the Tribunal’s decision was the inevitable consequence of the applicant’s decision not to accept that hearing invitation.
In all the circumstances, the applicant has failed to persuade me that the Court should disturb its dismissal and costs orders made on
22 February 2011.
I will order that the Application in a Case filed on 6 April 2011 be dismissed.
The Minister seeks an order for costs fixed in the sum of $1,200 in consequence of the dismissal of the Application in a Case. The applicant did not wish to be heard on the issue of costs. The Minister was properly required to prepare the court book filed on 22 April 2011 in preparation for the hearing on the Application in a Case. The Minister was also required to attend by his legal representative today and deal with argument on that application. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $1,200.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 May 2011
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