Federal Magistrates Court of Australia|2004-10-07

SZCLD v Minister for Immigration [2004] FMCA 690 (7 October 2004)

MIGRATION - Motion for reinstatement of judicial review application - application dismissed due to non-appearance by the applicant - insufficient reasons advanced by the applicant for reinstatement - motion dismissed.

(2) The judicial review applicant is to pay the respondent's costs and disbursements of and incidental to the application for judicial review and the motion, fixed in the sum of $3,000.

1. I have before me a motion of which notice was given on 6 September 2004 by the applicant, seeking reinstatement of an application for judicial review which I dismissed for non-appearance on 16 August 2004. The circumstances are that the judicial review application was placed in a non-compliance list on 16 August 2004 because of the failure of the applicant to comply with an order of the Court made by a Registrar on 2 April 2004, requiring an amended and fully particularised application to be filed by 14 May 2004. At that hearing before the Registrar the applicant was legally represented. He remained legally represented until late June 2004 when his solicitor ceased acting for him. The affidavit of the solicitor, filed on 6 July 2004, deals with that cessation to act.

2. In the meantime the solicitors for the Minister had sent two letters to the applicant's solicitor warning of the likely consequences of non-compliance. The second of those letters advised that the matter had been placed in the non-compliance list at 2.15pm on 16 August 2004.

3. The applicant initially denied in evidence ever having received either of the letters sent by the respondent's solicitors to his own solicitor and denied any knowledge of the Court fixture on 16 August 2004. Subsequently, he retreated from that position and admitted that he was aware of the date but denied being aware of the time. When pressed on the issue he admitted that he had himself formed the view that if he filed an amended application prior to 16 August 2004 he would not have to attend court. That was both a bold and a false assumption.

4. What the applicant did was to file an affidavit on 12 July 2004 to which was attached an unsigned and undated form of amended application. It is not my practice to read files prior to matters coming before me on a non-compliance list and I did not read the affidavit on 16 August 2004. In the circumstances, I was not at that time aware that there had been some form of amended application presented to the Court. When the applicant failed to appear his application for judicial review was dismissed. The applicant now seeks the reinstatement of his application for judicial review on the basis that he had complied with the order for an amended application, albeit significantly late, and that the interests of justice require that a hearing be given to that amended application.

5. I disagree. The applicant has behaved in a cavalier fashion in assuming that the presentation of a document purporting to be an amended application in compliance with an earlier order of the Court relieved him of any obligation to attend court to deal with the matter in the non-compliance list. In addition, as submitted by Mr Beech-Jones, for the Minister, the form of the amended application gives me no confidence that there could be a successful outcome for the applicant if this matter went to a final hearing.

6. The grounds advanced in the form of amended application do not point clearly or at all to any jurisdictional error on the part of the RRT. They are, in substance, an attack on the merits of the decision of the RRT. The merits of the decision are not amenable to review in the Court. In the circumstances, I have formed the view that the outcome of any final hearing based upon the form of the amended application would be a dismissal of the application.

7. In the circumstances, the interests of justice do not require that the judicial review application be reinstated.

9. On the question of costs, Mr Beech-Jones seeks an order for costs both in relation to the judicial review application and the motion. In my view, on a party/party basis costs fixed in the sum of $3,000 in this matter would be appropriate. The applicant sought a lesser amount, but his request related to his ability to pay rather than the appropriateness and reasonableness of the costs incurred on behalf of the Minister. I will order that the motion be dismissed and that the judicial review applicant pay the costs and disbursements of the respondent Minister of and incidental to the application for judicial review and the motion, fixed in the sum of $3,000.

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

SZCLD v Minister for Immigration [2004] FMCA 690

At a glance

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Decision date

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Judgment (14 paragraphs)

SZCLD v Minister for Immigration [2004] FMCA 690 (7 October 2004)

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