NBLY v Minister for Immigration

[2006] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBLY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 583

MIGRATION – Review of decision by Refugee Review Tribunal – applicant failed to appear – application dismissed pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001 – letter to applicant’s address for service returned and marked “Building Block”.

Migration Act 1958 (Cth)

Applicant: NBLY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3021 of 2005

Judgment of: Emmett FM

Hearing date: 30 March 2006

Date of last submission: 30 March 2006

Delivered at: Sydney

Delivered on: 30 March 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Mr J. Bird, Phillips Fox Lawyers

ORDERS

1. The application before this Court is dismissed.

2. That the applicant pay the First Respondent’s costs in an amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3021 of 2005

NBLY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now 10.42am and the applicant has not appeared, having been called outside on at least three occasions. 

2. The first respondent seeks an order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 dismissing the applicant's application by virtue of her non-appearance.

3. It is relevant to recite a brief history of this matter. On 6 July 2005 the applicant filed an application in the Federal Magistrates Court of Australia seeking review of a decision of the Refugee Review Tribunal of which the applicant was notified on 30 June 2005. The Tribunal had determined that it did not have jurisdiction to review the decision of the delegate refusing a protection visa because the application to the Tribunal by the applicant was filed outside the mandatory time limits provided for under the Migration Act 1958 (Cth).

4. On 3 August 2005, directions were made by the Registrar of this Court, inter alia, directing the applicant to file and serve an amended application and setting the matter down for hearing today at 10.15am. The applicant was present at the directions hearing and signed the short minutes of order. The applicant then filed an amended application on 24 October 2005 in which she identified her address for service as

   
   

   24 Jones Street, Pendle Hill NSW 2145. That is indeed the same address that was on the applicant's original application filed on 6 July 2005.

5. The first respondent has tendered this morning a letter that it had couriered to the applicant together with a copy of the courier operations sheet, those documents together will be exhibit 1R, which discloses that on 28 March 2006 the first respondent sent to the applicant at her address at 24 Jones Street, Pendle Hill, a copy of the first respondent's submissions and list of authorities. The courier operations sheet discloses that the job number 12697 was for delivery of the document to 24 Jones Street, Pendle Hill. In handwriting on that document with an arrow at the address are the words "Building Block". 

6. The first respondent also tendered a file note of Emily Ramos dated 29 March 2006, which I mark exhibit 2R, which discloses, inter alia, that the courier had noted that the applicant's address is a “Building Block”. 

7. In any event, I am satisfied that the documents were sent to the applicant's identified address for service. Moreover, the applicant was present in Court when the matter was set down for hearing today. 

8. In the circumstances, there has been no communication from the applicant with the first respondent's solicitor nor the Court in respect of any reason why the applicant would not be present in Court today. In the circumstances, I am satisfied that it is appropriate to proceed in the absence of the applicant.

9. I have had regard to the first respondent's outline of submissions. At the heart of the submissions is a contention that there was no discretion in the Tribunal to extend time in circumstances where it was satisfied, as it found it was, that the statutory regime of notification was complied with. Whilst I have not had comprehensive submissions on that matter nor satisfied myself of the statutory regime, there is nothing before me to suggest that the first respondent’s contention is incorrect. In the circumstances, I am satisfied that the order sought by the first respondent this morning is appropriate. Accordingly, I order that the applicant’s application in this Court is dismissed pursuant to

   
   

   r.13.03A(c) of the Federal Magistrates Court Rules 2001.

RECORDED   :    NOT TRANSCRIBED

1. The first respondent seeks costs fixed in the sum of $3000. Whilst this would not be a complex matter, I note that the first respondent has prepared an outline of submissions in accordance with the directions made on 3 August 2005 and that the amount sought is otherwise less than that provided for in the schedule of costs annexed to the Federal Magistrates Court Rules 2001.

2. In the circumstances, I am satisfied that the costs sought are reasonable. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  A D’Addona

Date:  21 April 2006