BZACE v Minister for Immigration - [2012] FMCA 816

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZACE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 816

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant – consideration of factors relevant to exercise of discretion to dismiss application and to order costs.

Federal Magistrates Court Rules, r.13.03C(1)(c)

Applicant:

BZACE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 346 of 2012

Judgment of:

Coker FM

Hearing date:

10 August 2012

Delivered at:

Cairns

Delivered on:

10 August 2012

REPRESENTATION

Applicant:

No appearance

Solicitors for the Respondents

Sparke Helmore

ORDERS

That the Application is dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 346 of 2012

BZACE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

I have a request for reasons in relation to orders that were made on 10 August 2012. On that day in Cairns I made orders in respect of these proceedings in these terms:
1. That the Application is dismissed.
2. That the Applicant pay the Respondent’s costs fixed in the sum of $4,500.00.
The reasons in relation to the making of such orders are as follows.
On 10 August 2012, the application of the applicant was before the Court. The original application was filed on 26 April 2012 and was returnable on 24 May 2012. On 24 May 2012, orders were made by Federal Magistrate Jarrett in these terms:
1. The application be adjourned to 1 June 2012 at 9.30a.m. for directions in the Federal Magistrates Court of Australia sitting at Brisbane.
2. Both parties have leave to appear by telephone on the next Court date.
3. Costs of today in the cause.
The application was then, pursuant to those orders, adjourned to 1 June 2012 and at that time Federal Magistrate Jarrett made directions in relation to preparing this matter for hearing and, in fact noting specifically that the matter was listed for final hearing at 10.00am on 10 August 2012 before me, in the Federal Magistrates Court of Australia, sitting at Cairns. The applicant was present at the time that those orders were made.
I was advised of and had received from the solicitors for the first respondent, copies of two letters that were forwarded to the applicant at the residential address provided by him, for the purposes of correspondence. It should be noted that that correspondence came from both the court and also from the legal representatives for the first respondent. Both letters notified the applicant of the listing, and the correspondence from the solicitors for the first respondent further informed the applicant of the consequences of a failure to attend, which were specifically noted as a request that would be made for the application to be dismissed and for costs to be ordered.
The matter came before the court and there was no appearance. The matter had been called on a number of occasions and in fact the start of the proceedings were delayed so as to ensure that there was no confusion with regard to the floor of the building that the applicant should attend at or other calls or enquiries that might have been made, as a result of any confusion.
No such call or contact was received and I was asked by the legal representative for the first respondent to make the orders that they envisaged in communications with the applicant, pursuant to the provisions of rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001. Rule 13.03C is headed, “Default of appearance of a party” and in particular (1)(c) is in these terms.
(1)If a party to a proceedings is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
… (c )if the absent party is an applicant – dismiss the application;…
I was and am satisfied that the applicant was properly aware of these proceedings, being the person who instituted them, that the applicant was aware of the date, time and place that the proceedings were to be conducted and, if anything, was concerned at what appeared to be a repeat course, in relation to these proceedings, in that there had been a non-attendance at the hearing before the Refugee Review Tribunal.
It was clear that the applicant had had reasonable notice of the hearing, arising both from his attendance at the court on 1 June 2012, when directions were made, including the specific direction with regard to the listing of the proceedings, as well as the communication forwarded by both the court and the legal representatives for the first respondent.
I was satisfied that for reasons, perhaps only known to the applicant, he had chosen not to attend, there being no other explanation provided in relation to the matter and of course in that regard it is noteworthy that the applicant had not complied with any of the directions previously made, in relation to the preparation of the proceedings.
The applicant’s absence remained unexplained and appeared, as I noted before, to be indicative of his conduct in the past, to make application but then not appear at the critical events required to process that application and then to seek to appeal from any decision that might have been made, thus delaying the final operation of any determination.
As such, I was satisfied that the applicant had had notice of these proceedings, that he had not attended, that no explanation had been proffered, and that a considerable amount of time had passed, since the designated time to commence the hearing of the matter. It was appropriate in the circumstances therefore, that the application made on the part of the first respondent for the proceedings to be dismissed should occur, and I made an order dismissing the application pursuant to rule 13.03C(1)(c ) for the Federal Magistrates Court Rules.
I was also asked by the legal representatives for the minister, to make an order for costs against the applicant, in light of my findings that it was appropriate that the application should be dismissed. In that regard I was asked to make an order in the sum of $4,500.00 as a fixed amount, notwithstanding that the amount noted in the schedule to the court’s rules was $6,471.00.
It was an appropriate order to be made. In that regard, I was mindful of the fact that the applicant was made clearly aware of the fact that if there were no appearance in relation to the proceedings that an application would be made for the proceedings to be dismissed and also for an order for costs.
It was appropriate that such an order should be made. In this jurisdiction, as in many throughout the world, unsuccessful legal proceedings are accompanied by costs orders made against the unsuccessful party. It was proper that such an order should be made in relation to the matter, particularly when it was clear that it was entirely as a result of the default in attendance or communication by the applicant that the costs incurred by the first respondent had resulted. I made an order for the applicant to pay the respondent’s costs fixed in the sum of $4,500.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 10 September 2012