NAFG v Minister for Immigration (No.1)

[2003] FMCA 549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFG v MINISTER FOR IMMIGRATION (No.1) [2003] FMCA 549

MIGRATION – Application for review of Refugee Review Tribunal decision – non-appearance of applicant – application dismissed.

Applicant: NAFG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ279 of 2003

Delivered on: 8 October 2003

Delivered at: Sydney

Hearing Date: 8 October 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. That the solicitor for the Respondent notify the Applicant of the Orders made today and the existence and effect of Federal Magistrates Court Rule 16.05(2)(a) by letter to the address for service of the Applicant within 7 days of today’s date. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ278 of 2003

NAFG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on

   
   

   19 October 2001.  On 26 November 2001 he lodged an application for a protection visa.  On 15 February 2002 a delegate of the respondent refused to grant the applicant a protection visa.  He sought review of that decision by the Refugee Review Tribunal (the Tribunal).  The Tribunal handed down a decision affirming the decision of the delegate of the respondent on 26 November 2002.  The applicant filed an application for review of the Tribunal decision in the Federal Court on 9 December 2002. 

2. The matter was transferred to this court by Sackville J on 6 February 2003 at a directions hearing attended by the applicant.  The applicant failed to attend the subsequent directions hearing on 26 March 2003 but attended on 2 April 2003 and had the assistance of a Punjabi interpreter on that day.  The matter was listed for hearing today, 8 October 2003 at 10:15am.  The applicant has not filed any amended application or any outline of written submissions as directed.  The respondent did file written submissions. 

3. When the matter was called this morning at 10:15am the applicant did not appear.  I am advised that my associate then rang him on the mobile telephone number provided by him.  He advised that he was on his way to the hearing and should be there in 15 minutes.  He did not arrive.  At 10:55am she telephoned the mobile number again.  There was no answer, and again at 11:00am there was no answer.  No one responded when the matter was called outside the court either at 10:15am or at 11:00am this morning. 

4. The respondent seeks an order dismissing the application pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules. I consider that this rule should apply pursuant to Rule 1.05(2) of the Federal Magistrate Court Rules there being no equivalent in the Federal Magistrates Court Rules. I am satisfied that the applicant was aware of the hearing and has had a proper opportunity to appear.

5. I have also had regard to the decision of the Tribunal and the nature of the application and the very general complaints made by the applicant.  His case does not appear to be a strong one.  In all the circumstances I consider it is appropriate that the application be dismissed under Order 32 Rule 2(1)(c) of the Federal Court Rules. 

6. I also note the existence of Federal Magistrate Court Rule 16.05(2)(a) (which is the equivalent of Order 35 of the Federal Court Rules) which enables a party against whom orders have been made in absentia to make an application to the court to have the orders set aside if it is established that there are proper grounds for so doing.  I intend to require the solicitor for the respondent to notify the applicant of this provision. 

7. The respondent seeks costs of $3,500.  I consider that in this case this is an appropriate amount.  It is appropriate that the applicant should meet the costs of the respondent.  The amount should be fixed under the Federal Magistrate Court Rules. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 October 2003.