SZVJO v Minister for Immigration

[2015] FCCA 3252

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3252

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – non-appearance.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.0

Applicant: SZVJO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2997 of 2014

Judgment of: Judge Barnes

Hearing date: 30 November 2015

Delivered at: Sydney

Delivered on: 30 November 2015

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr M. Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. There being no appearance by the Applicant the application of 28 October 2014 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The First Respondent notify the Applicant by mail sent to his last known address for service of the orders made today and of the effect of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

3. The name of the Second Respondent be amended to read "Administrative Appeals Tribunal".

4. The Applicant pay the costs of the First Respondent fixed in the sum of $6,200. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2997 of 2014

SZVJO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal).  The Applicant sought review by application filed on 28 October 2014 and attended a directions hearing on 26 November 2014 with the assistance of a Mandarin interpreter.  On that day, orders were made, including listing the matter for hearing today at 2.15 pm.  At that stage, the court was located in John Maddison Tower.  The order made referred to that venue.  The Applicant has not taken the opportunity to file any other documents, as provided for in the directions made that day. 

2. When the court relocated to 80 William Street, the court wrote to the Applicant at his last known address for service notifying him of the change of venue, enclosing a map and confirming that the matter remained listed for hearing today at 2.15 pm. 

3. In addition, the First Respondent filed in court an affidavit of Vanessa Sarah Page affirmed on 27 November 2015, attesting to service on the Applicant, both by courier to his last known residential address and by express post to his post office box on 12 November 2015, of a letter enclosing the First Respondent’s submissions and reminding the Applicant of the date, time and location of the hearing.  The letter also advised that if the Applicant did not attend, the First Respondent may seek to have the matter dismissed with costs for non-appearance.

4. The Applicant was not present today at the time the matter was listed for hearing. In light of the change of venue, I allowed over half an hour. There is still no appearance for the Applicant over half an hour later. In those circumstances, given the steps that have been taken to bring to his attention the change of venue, I am satisfied that he was aware of the time and date of the hearing from the directions hearing. I consider it appropriate to dismiss the matter for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) with costs.

5. However, given the change of venue, I will also make an order requiring the First Respondent to notify the Applicant of the orders made today and also to bring to the Applicant’s attention r.16.05 of the Federal Circuit Court Rules2001 (Cth) so that if there is a legitimate reason for his non-appearance, the Applicant would have the opportunity to seek to reinstate the proceedings.

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

Associate: 

Date: 7 December 2015