NBBK v Minister for Immigration
[2005] FMCA 262
•28 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBBK v MINISTER FOR IMMIGRATION | [2005] FMCA 262 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application fro review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend the RRT hearing – where applicant claims to be a member of a particular social group arising out of alleged domestic violence. |
| Migration Act 1958 (Cth), s.475A Judiciary Act 1903 (Cth), s.39B |
| SZDMD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 126 |
| Applicant: | NBBK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1019 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 February 2005 |
| Date of Last Submission: | 28 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2005 |
REPRESENTATION
| Solicitors for the Applicant: | No Appearance |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed pursuant to Rule 13.03A (c) for non-attendance by the Applicant.
The Applicant is to pay the Respondent’s costs fixed in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1019 of 2004
| NBBK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal which was made on 23 December 2003 and handed down on 16 January 2004. The decision of the Tribunal was to affirm a decision of the delegate of the Minister not to grant to the applicant a protection visa. The Court Book shows that the Tribunal wrote to the applicant on 2 October 2003 advising her that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on
6 November 2003. The letter was returned unclaimed and the applicant did not appear on the hearing date.
The Tribunal proceeded to consider the matter on the papers and came to the conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal therefore affirmed the decision not to grant a protection visa.
The applicant then filed an application in the Federal Court for review of that decision. On 12 March 2004 in that Court, Whitlam J ordered that the proceedings be transferred to this Court. His Honour then made orders by consent relating to the respondents filing and serving a relevant bundle of documents on or before 19 March 2004 and the applicant filing and serving an amended and fully particularised application together with an affidavit in support and any evidence upon which she proposed to rely on or before 16 April 2004. It is fair to say that the applicant only partly complied with that direction. The applicant did file an amended application on 16 April 2004. There is no evidence on the file of any affidavit having been filed with the Court.
The matter was listed for final hearing before me at 10.15 this morning. When the matter was called the solicitor for the respondent appeared, as did the Chinese interpreter. I note that the applicant is said to be a citizen of China. The applicant did not appear. Having ascertained that the applicant had not appeared, I inquired of Ms Bautista, solicitor for the respondent, as to whether she was aware of any reason why the applicant had not appeared, and she was not. I then took the step of standing the matter down for half an hour in case the applicant had been delayed by some difficulty with public transport or in case the applicant had mistakenly gone to the court at Queens Square rather than come here to the John Madison Tower.
For the respondent, Ms Bautista, tendered a copy of a letter written to the applicant at her last known address, which was sent by express post and dated 23 February 2005. The relevant parts of the letter say as follows:
This matter is listed for hearing on 28 February 2005 at 10.15 before Federal Magistrate Scarlett at John Madison Tower, 88 Goulburn Street, Sydney. You are required to attend on that occasion. If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister's legal costs. If you have any queries please contact us.
In my view, that letter makes it quite clear to the applicant what was due to happen today.
I stood the matter down for half an hour. I directed the solicitor for the respondent to telephone her office to inquire whether the applicant had attended there or had sent any message to her. I also directed my Associate to make contact with the court at Queens Square to ascertain whether:
a)a) the applicant mistakenly gone there, or
b)b) the applicant had sent any telephone message or faxed in a medical certificate indicating either that she was running late or was unable to attend for a legitimate reason.
I am informed by Ms Bautista, solicitor for the respondent, in open court that she telephoned her office and was informed that there was no message from the applicant. I am informed by my Associate, and I believe it to be true, that she arranged for a Chinese speaking member of the staff of the Federal Magistrates Court to inquire whether the applicant had attended at Queens Square or had sent any message. That staff member reported back that the applicant had not appeared, nor was there any message either in writing or be telephone indicating that she was either late or unable to attend.
I returned to the Bench at 10.48 am and directed my Associate to call the matter three times outside the courtroom. This was done, and there was no appearance by the applicant. I would note that at my direction a Chinese speaking member of the staff of the Federal Magistrates Court has prepared notices in the Chinese language which have been placed on levels 6 and 7 informing applicants who can read Chinese, of the correct court to come to so that they will not be confused and wait on the wrong floor or outside of the wrong court.
Despite all of these steps, there has been no appearance by the applicant and I see no reason why this matter should be delayed any further. I note that the time is now one minute past 11 and there is no appearance by the applicant.
I am asked by Ms Bautista for the respondent to dismiss the application for non attendance pursuant to sub-rule (c) of Rule 13.03A of the Federal Magistrates Court Rules. To my mind, this is an appropriate application and I dismiss the application pursuant to rule 13.03A(c) for non attendance by the applicant.
There has been no appearance by the applicant. The respondents' solicitors have, from the documentation that appears on the file, prepared the case thoroughly and have arrived at court today ready to conduct a defended hearing. Costs follow the event, I see no reason why I should not make an order for costs and I do propose to order that the applicant is to pay the respondent's costs. The amount that is sought is the amount of $2000. It is the practice of the Federal Magistrates Court to make orders for costs in a fixed sum wherever possible and I intend to do that.
To my mind, the amount of $2000 is well within the range envisaged by the Federal Magistrates Court Rules. I order that the applicant is to pay the respondent's costs fixed in the sum of $2000. I require a transcript of my reasons for this decision and I note that in the previous case of SZDMD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 126, Hely J of the Federal Court spoke with approval of the procedure that I have adopted for dealing with applicants who do not attend at the time and I propose to continue with that procedure before exercising my discretion to dismiss any application.
Otherwise, the application be removed from the list of cases awaiting finalisation.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 9 March 2005
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