NBBN v Minister for Immigration

[2004] FMCA 1102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBN v MINISTER FOR IMMIGRATION [2004] FMCA 1102

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for 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.

PRACTICE & PROCEDURE – Summary dismissal – where applicant fails to appear at hearing.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrates Court Rules 2001 Rules 13.03(2) (b); 13.03A

Applicant: NBBN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1015 of 2004

Judgment of: Scarlett FM

Hearing date: 22 June 2004

Date of Last Submission: 22 June 2004

Delivered at: Sydney

Delivered on: 22 June 2004

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Ms Rayment

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application be summarily dismissed.

2. That the Applicant is to pay the Respondent’s costs fixed in the sum of $1,500.00.

3. I allow one month to pay the costs.

4. The final hearing date of 1 March 2005 is vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1015 of 2004

NBBN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision by the delegate of the Minister to refuse a protection visa to the Applicant. The substantive application is due to be heard on 1 March 2005. The matter is before the Court today because the Respondent has applied for summary dismissal.

2. The Applicant has not appeared today, despite being advised of the application for dismissal. The Applicant has been called outside the courtroom, but no-one has answered the call.

3. The Applicant has failed to comply with the directions made at the first hearing date to either file an affidavit in support or provide particulars of the reasons why jurisdictional error is claimed. The Applicant has not attended court today.

4. I note that the Applicant also did not attend the hearing before the Refugee Review Tribunal.  

5. I am satisfied that this is a matter that should be dismissed now, as the Applicant has both failed to take a step in the proceedings (R. 13.03(2) (b) and failed to attend Court today (R 13.03A). I propose to dismiss the application and make an order for costs against the Applicant.

6. Ms Rayment, the solicitor for the Respondent Minister, seeks the sum of $1,500.00, which appears to be a reasonable figure and well within the range envisioned by the Rules.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S. Polley

Date:  1 April 2005