NANT v Minister for Immigration (No.1)
[2003] FMCA 486
•4 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NANT v MINISTER FOR IMMIGRATION (No.1) | [2003] FMCA 486 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – non-appearance by applicant – application dismissed. |
| Applicant: | NANT |
| Respondent: | THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1019 of 2003 |
| Delivered on: | 4 November 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 4 November 2003 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
That the application is dismissed.
That the solicitor for the Respondent notify the Applicant by notice in writing of the orders made today and the effect of Rule 16.05 of the Federal Magistrates Court Rules within seven days of today's date
That the Applicant pay the Respondent’s costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1019 of 2003
| NANT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal. It was handed down on 18 March 2003, refusing to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia on
30 June 2001 and applied for a protection visa on 8 January 2002 on the basis that she feared persecution in Sri Lanka for reasons of her imputed political opinion.
On 12 November 2001 her application was refused by a delegate of the respondent. Prior to reaching the decision the delegate had attempted to arrange an interview with the applicant. The applicant's agent advised that she would not be attending any interview. The delegate then wrote to the applicant and advised her of difficulties that the delegate had with the information the applicant had provided, including lack of detail and a number of inconsistencies and implausibilities in her claim. The letter also advising the applicant of certain information about the situation in Sri Lanka and invited the applicant to comment on the contents of the letter. The applicant did not reply to this letter.
In the application to the Tribunal the applicant merely indicated that the delegate had erred in deciding that she was not a refugee. On 16 December 2002 the Tribunal wrote to the applicant at the residential address provided and care of her migration agent and advised her that it was unable to make a decision in her favour on the information before it and inviting her to attend a hearing. The hearing was re-scheduled on a number of occasions but, ultimately, the applicant's migration adviser wrote to the Tribunal on 25 February2003 and requested that the Tribunal reach a decision on the papers because the applicant (and her sister who had a separate application before the Tribunal) did not wish to attend a hearing. The applicant provided no further written submission or other documents to the Tribunal.
The progress in attempting to arrange a hearing for the applicant, including an offer of a video-link hearing when the applicant’s adviser stated that she had moved to Melbourne, is detailed in the Tribunal reasons for decision. It is also noted that the applicant accepted an invitation to a hearing but then did not appear. It is apparent from the material before the Court the migration agent requested the Tribunal to reach a decision on paper after this event because the applicants ‘do not wish to attend a hearing’. The Tribunal made its decision refusing the applicant's visa application.
The applicant applied to the Federal Court for review of the decision on 11 April 2003. It appears from the court file that the applicant did not attend the directions hearing on 2 May 2003 when the matter was transferred to this Court and listed for hearing but on that date provided a medical certificate which stated that she was unfit for work from
1-2 May 2003. Also provided was a letter from her sister indicating that she was in Melbourne as at 1 May 2003, felt sick and was unable to attend the hearing.
On 6 June 2003 the applicant was notified of today’s hearing by letter sent to the address provided by her.
The applicant has not appeared today. The hearing was schedule for today. I am satisfied on the basis of the material in the file, including a letter of notification sent to the applicant on 6 June 2003, that she was advised of the hearing date. She has not filed any amended application, nor has she filed any written submissions as directed. She did not appear when the matter was called at the time appointed for the hearing, or when the matter was called again after a 15 minute adjournment. No message has been received from her explaining her failure to appear. On the evidence before me I am satisfied that she had notice of the hearing and was given a proper opportunity to appear.
The respondent seeks an order dismissing the application. The Court has power under Rule 13.03A(c) of the Federal Magistrates Court Rules to dismiss an application in the absence of an applicant, and I consider that it is appropriate to do so in this case. The applicant had an opportunity to appear. I have also had regard to the decision of the Tribunal and the limited grounds put forward by the applicant in making the decision to dismiss this application. I also note the operation of Rule 16.05(2)(a) of the Federal Magistrates Court Rules, (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 judgment set aside if there are proper grounds for making such an application. I consider it appropriate that the solicitor for the respondent notify the applicant of this provision, and the effect of this provision, within seven days of today's date.
RECORDED : NOT TRANSCRIBED
In these circumstances I consider it is appropriate that the applicant meet the respondent's costs which are estimated in the amount of $4,000. I consider that this amount is appropriate.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 5 November 2003
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