NAJP v Minister for Immigration

[2003] FMCA 602

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJP v MINISTER FOR IMMIGRATION [2003] FMCA 602

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

Applicant: NAJP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ487 of 2003

Delivered on: 14 November 2003

Delivered at: Sydney

Hearing Date: 14 November 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: Sparke Helmore Solicitors

ORDERS

1. That the application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. That the applicant pay the respondent's costs set in the amount of $4,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. That the solicitors for the respondent notify the applicant by letter sent by prepaid post to the last known address for the applicant within 7 days of today's date of the orders made today and also notify him of the effect of Rule 16.05(2) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ487 of 2003

NAJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 December 2002 and apparently handed down on 9 January 2003 (although a notation on the copy of the decision records the handing down date as 9 January 2002).  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant sought review of that decision in the Federal Court.  The matter was transferred to this Court. 

2. The matter was originally set down for hearing on 21 October 2003.  Subsequently the hearing date was changed to 10:15am on 13 November 2003.  The solicitors for the respondent were correctly notified of this date.  However the solicitors for the applicant were notified by letter dated 26 May 2003 that the hearing would be Friday 14 November 2003 at 10:15am.  On 30 October 2003 the solicitor for the applicant filed a Notice of Ceasing to Act and an affidavit indicating that the applicant had withdrawn his instructions. 

3. When the matter came on for hearing yesterday morning (13 November 2003) the applicant did not appear.  Counsel for the respondent indicated that his instructing solicitor had sent written submissions to the applicant at the address on the file and had notified him that the hearing was on 13 November 2003. 

4. Nonetheless, in light of the letter sent to the applicant’s solicitor on

   
   

   26 May 2003, to allow for the possibility that the applicant was of the view that the hearing was on 14 November 2003, the matter was adjourned until 10:15am today.  A letter was sent by courier to the applicant to confirm that the hearing would be on Friday 14 November 2003 at 10:15.  It provided a contact telephone number.  The applicant did not appear when the matter was called today at 10:15am or at 10:35am.  All attempts to contact him by telephone were unsuccessful. 

5. The respondent seeks an order that the application be dismissed in light of the applicant's non-appearance.  I am satisfied that the applicant has been given the opportunity to appear on both 13 and 14 November 2003 and was not disadvantaged by the notification that the hearing was to be on 14 November 2003.  There is nothing to suggest that the applicant has contacted either the court or the solicitors for the respondent in relation to this hearing or his non-appearance.  He has not filed any written submissions as ordered. 

6. In all of those circumstances, given that he had the opportunity to appear either yesterday or today and has not done so, I consider that it is appropriate that the matter be dismissed under Rule 13.03A(c) of the Federal Magistrates Court Rules. I have had regard to all of the material before me in reaching that conclusion. To allow for the possibility that there may be a legitimate explanation for the absence of the applicant today it is appropriate that the solicitor for the respondent be required to notify him of the orders made today and of the effect of Rule 16.05(2)(a) by letter sent by prepaid post to the address that appears on the file.

7. The respondent also seeks that the applicant pay costs in this matter. In the circumstances of this case I consider that the amount of $4,500 sought by the respondent is appropriate. Costs should be set in accordance with the Federal Magistrates Court Rules.

RECORDED   :   NOT TRANSCRIBED

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

Associate: 

Date:  14 November 2003