FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNYZ v MINISTER FOR IMMIGRATION & ANOR	[2010] FMCA 118	

MIGRATION – RRT decision – applicant failed to provide Court with notice of address for service following release from detention – application dismissed for non-appearance.	

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05
Migration Act 1958 (Cth)	

Applicant:	SZNYZ	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 2495 of 2009	

Judgment of:	Smith FM	

Hearing date:	15 February 2010	

Delivered at:	Sydney	

Delivered on:	15 February 2010	

REPRESENTATION
Counsel for the Applicant:	No Appearance	

Counsel for the Respondents:	Ms L Clegg	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS
(1)	The application is dismissed under Rule 13.03C(1)(c) for absence from a hearing.
(2)	The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Sydney	
SYG 2495 of 2009
SZNYZ	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(revised from transcript)
1.	This is an application for judicial review of a decision of the Refugee Review Tribunal made on 9 September 2009.  At that time, the applicant was in immigration detention and had been there since March 2009.  He had been taken into detention after his student visa was cancelled, due to non-attendance in accordance with visa conditions. His application for a protection visa was lodged in Villawood with legal assistance, and he was also assisted by a solicitor in his appeal to the Tribunal.
2.	The application filed in this Court reveals continuing assistance being given to the applicant, if not from a lawyer, then from people who provide helpful assistance to persons held in detention in Villawood.  The application they prepared sets out a number of detailed arguments which address the Tribunal’s reasoning, and it was accompanied by a transcript of the second of the Tribunal’s three hearings, in support of one of the arguments.
3.	At the first court date on 10 November 2009, a barrister had been organised to appear for the applicant, and the applicant was also present, having been brought to Court from Villawood.  I made directions in writing, and must assume that their contents were communicated fully to the applicant on that day.  Indeed, I think it probable that I gave counsel two copies, one of those being for his client.  The directions contained a timetable for an amended application and any additional evidence, and listed the matter for final hearing today at 10.15am in the same court room.   The applicant was not referred for advice under the free legal scheme, since he was manifestly receiving advice from counsel.  
4.	However, no amended application, additional evidence, or written submissions were filed.  I am informed by the Minister’s solicitor that the counsel who appeared at the first court date ceased to act for the applicant, and his brief was transferred to another barrister.  The Minister’s solicitors were expecting that barrister to appear today.  However, in recent times, the Minister’s solicitor was informed that neither of the counsel have instructions to act for the applicant any longer.  
5.	No reasons for their ceasing to represent the applicant were given, nor needed to be given.  There is no rule of court nor practice which requires barristers taking direct client instructions, to file a notice of withdrawal which will confirm that their client has been informed that the matter might be disposed of in his absence.  There is therefore some uncertainty as to how and when the applicant was reminded by his legal advisors that he needed to attend today’s hearing in person himself.  
6.	The Court was unaware of these events in relation to legal representation until last week, and also was unaware that the applicant had been released from Villawood Detention Centre, which I am told today, occurred sometime in November last year.  The applicant has not filed a notice of change of address for service.
7.	Due to unfortunate circumstances which arose early last week, the hearing of today’s matter had to be postponed until 2.15pm today.   This was arranged with the Minister’s solicitors, and was notified to the applicant in a letter from my associate on 11 February addressed to the last address given by the applicant to the Department of Immigration, being a unit at Auburn.  It was to that address which the Minister also last week sent a copy of the Minister’s submissions, reminding the applicant that he needed to attend today at 10.15am.
8.	There is no evidence whether either of those letters was actually received by the applicant.  It is possible that the letter notifying the change of time for the hearing might not have been received in the ordinary course of post before today, although it was sent by Express Post last Thursday.  However, there was no attendance at the Court by the applicant this morning at 10.15am, nor has he appeared this afternoon between 2.15pm and 2.45pm.  The matter has been in the published court lists for today.  
9.	In these circumstances, the Minister invites the court to dismiss the application under Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) for non-attendance at a hearing.  I consider it is appropriate to accede to that application, particularly in the absence of the applicant having notified the Court of his changed address for service, and in the absence of any explanation for his absence this morning as well as from this afternoon’s listing.
10.	When taking this course, I have taken into account the doubtful merits of the grounds set out in the original application filed in the Court, and the absence of any amended application.  I am inclined to think that the application raised factual points going only to the merits of the Tribunal’s assessment of the applicant’s refugee claims.  I have not identified for myself a clearly arguable ground of jurisdictional error, which might make it appropriate for me to further adjourn the hearing to allow further efforts to contact the applicant.  
11.	If the applicant has a reasonable explanation for not being present at Court today, and if he has arguments which he wishes the Court to address fully, then it will be necessary for him to make an application to the Court under Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) seeking to set aside today’s orders.  Any such application should be brought without any delay after the applicant becomes aware of the outcome of today’s listing.  
12.	A copy of this judgment will be posted to the applicant at his last known address.  
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  23 February 2010