Applicant S1926 of 2003 v Minister for Immigration

[2006] FMCA 978

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT S1926 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 978

MIGRATION – Review of decision by Refugee Review Tribunal – applicant failed to appear – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.13.03A(c), sch.11.

Applicant: APPLICANT S1926 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG722 of 2004

Judgment of: Emmett FM

Hearing date: 8 June 2006

Date of Last Submission: 8 June 2006

Delivered at: Sydney

Delivered on: 8 June 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms S. Goodman, Blake Dawson Waldron

ORDERS

1. That the aApplicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.[FMCoA1]

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. The application before this Court is dismissed.

4. That the applicant pay the first respondent’s costs in an amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG722 of 2004

APPLICANT S1926 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application in this Court on 15 March 2004 seeking review of a decision of the Refugee Review Tribunal dated 29 June 2000.  At a directions hearing on 4 February 2005, orders and directions were made for the future conduct of the matter, including setting the matter down for final hearing at 2.15pm on 9 June 2006, being tomorrow. 

2. On 8 May 2006, letters were sent by my Chambers to the parties in this matter.  The first respondent’s letter was addressed to their legal advisors, Blake Dawson Waldron, and was received by them.  Two letters were sent to the applicant dated 8 May 2006 from my Chambers, one addressed to the applicant’s notified address for service as contained on a further amended application filed by him on 3 March 2005, and the second letter sent to a residential address also notified on the further amended application filed on 3 March 2005.  There has been no document filed by the applicant since 3 March 2005, despite the directions made on 4 February 2005, directing the applicant to file any written submissions in support of his application no less than 14 days prior to the hearing.

3. The first respondent read an affidavit of Susan Goodman, sworn 5 June 2006, annexing an electronic system printout from the Department of Immigration and Multicultural Affairs.  That document indicated the applicant departed Australia on 9 February 2006.

4. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend and more probably than not left the country on 9 February 2006.

5. The first respondent seeks an order that the applicant’s application to this Court be dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules2001. In the circumstances, it is appropriate that such an order should be made.  Accordingly, I order that the applicant’s application to this Court is dismissed.

6. The first respondent seeks costs fixed in an amount of $5000 pursuant to Part 2, paragraph 1(c) of Schedule 1 of the Federal Magistrates Court Rules 2001.  It is quite clear from the procedural history of the matter that the matter was set down for a hearing today.  The applicant has filed over the years an application, an amended application, and a further amended application, being the document filed on 3 March 2005.

7. I note that the movement check was carried out on 1 June 2006.

8. In the circumstances, having regard to the preparation that would have been involved by the first respondent in preparing for the final hearing of this matter, including written submissions, I am satisfied that the order sought is appropriate.  Accordingly, I order that the applicant pay the first respondent’s costs in the amount of $5000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S.Choo

Date:  6 July 2006

[FMCoA1]I have added these joinder orders as requested since joinder orders were not previously made.