MZXQP v Minister for Immigration

[2007] FMCA 2046

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXQP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2046

MIGRATION – Refugee Review Tribunal – non-appearance – application dismissed pursuant to r.13.03A(3) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.13.03A(3)

Applicant: MZXQP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 650 of 2007

Judgment of: McInnis FM

Hearing date: 29 November 2007

Delivered at: Melbourne

Delivered on: 29 November 2007

REPRESENTATION

Applicant: No appearance

Solicitor for the First Respondent: Ms K.Miller

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001.

2. The Applicant pay the First Respondent's costs which I fix in the sum of $3,500.00.

IT IS DIRECTED:

A sealed copy of this order together with those reasons be forwarded to the Applicant at the address for service and also at the address which appears on the document entitled "Applicant written submission".

IT IS NOTED –

The First Respondent will file with the court a brief affidavit confirming the attendance of the Applicant in person before the Registrar on 4 July 2007 and that will occur within seven days of the date of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 650 of 2007

MZXQP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 17 April 2007 whereby the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa. When the matter was called on for hearing this day, the Applicant did not appear.

2. It is noted that on 4 July 2007, a registrar of this court made an order that the application be listed for final hearing before this court this day. The First Respondent, through the solicitor acting for and on behalf of the First Respondent, has agreed to file a short affidavit verifying that on 4 July 2007 the Applicant appeared in person, self-represented, before the registrar when the order was made, fixing the final hearing for this day.

3. It is noted from the court file that the address of the Applicant at all material times has remained a post office box address in Shepparton. There has been no notification provided to the court or the First Respondent of any change of address in any formal sense. The First Respondent, acting as a model litigant, however, has appropriately brought to the attention of the court that the First Respondent's solicitors received from the Applicant a document entitled "Applicant: written submission" which appears to bear the date 12 October 2007, though I understand was not received by the First Respondent's solicitors until on or about 22 November 2007. That document contains another address in Kingsville.

4. Inquiries have been made of registry and it has been determined that the Applicant's written submissions have not been filed in the appropriate manner with the court. It is the First Respondent who, again acting as model litigant, has forwarded a copy of those submissions to the court, and it is that copy of the written submission which I have directed should be placed on the file. I do that out of an abundance of caution to ensure that the file is complete, but it is not done in any way as a concession or an acknowledgment that the document has been properly filed by the Applicant. However, it does, as I have indicated reveal a different address to the address which has otherwise been the address for service of the Applicant.

5. In any event, the First Respondent chose to file supplementary contentions of fact and law dated 26 November 2007 which post-dated the receipt of the Applicant's submissions. A copy of the supplementary contentions was forwarded by the solicitors for the First Respondent to the address for service of the Applicant rather than the address which appears on the Applicant's written submission.

6. In the circumstances, I was not prepared to deal with the matter on written submissions, even though one might assume that the Applicant, by choosing to forward the written submissions to the First Respondent's solicitors directly and not filing them with the court, has intended to rely upon those written submissions and not appear in court this day. It seems to me that, given the supplementary contentions that have been filed by the First Respondent and forwarded to the address for service, it would be unwise and unfair to permit the First Respondent to rely upon those supplementary contentions.

7. I note in passing, however, that the Applicant's written submission does not appear to advance the Applicant's case very much further. The issues raised in that document appear to be adequately addressed in the respondent's original contentions of fact and law in any event. Nevertheless, in the circumstances I am satisfied and find that the Applicant, having attended before the court when orders were made by the registrar on 4 July 2007, was well aware of the date of final hearing, has failed to file a notice of change of address for service and has failed to file indeed the latest document entitled "APPLICANT WRITTEN SUBMISSION".

8. The Applicant, then, has failed without reasonable excuse to attend court this day. In those circumstances he should not be given the benefit of the application proceeding on written submissions. The appropriate order in my view is that the application ought to be dismissed as a result of the non-appearance of the Applicant before the court this day.

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

Associate: 

Date:  29 November 2007