S1581 of 2003 v Minister for Immigration

[2006] FMCA 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1581 OF 2003 v MINISTER FOR IMMIGRATION
& ANOR [2006] FMCA 687

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of India – where applicant did not attend Federal Magistrates Court hearing.

Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001 r.13.03A

Applicant: APPLICANT S1581 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 631 of 2004

Judgment of: Scarlett FM

Hearing date: 3 May 2006

Date of Last Submission: 3 May 2006

Delivered at: Sydney

Delivered on: 3 May 2006

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) due to the non-appearance by the Applicant at Court.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 631 of 2004

APPLICANT S1581 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal which was made on 8^th September 1999.  The decision was handed down on 28^th September 1999.  It would seem to me that if the matter had been heard on its merits that the applicant would have had some explaining to do on the question of delay as I note the application was not filed until 9^th March 2004. 

2. The application came before a Registrar of this Court in a callover on 1^st February 2005 and was listed for hearing today.  What has happened since then is that a solicitor who practises regularly in this jurisdiction, Mr Jayawardena informed the respondent’s lawyers and the Registrar of this Court on 19^th April that he had been advised indirectly that the applicant had left Australia, in his words, around November 2005. 

3. The Minister’s lawyers quite promptly checked that with a legal officer at the Minister’s department and on 20^th April I note from the affidavit of Susan Goodman filed in Court today that she was informed by a legal officer from the Department that a check of the database confirmed that the applicant had left Australia on 26^th October 2005. 

4. As a result, on that same day, 20^th April 2006, the solicitor concerned contacted my Associate and advised by email that the applicant had left Australia.  I am pleased that the respondent’s lawyers have acted in a prompt and responsible way because it has allowed the Court to make good use of the time by listing another matter.  The Court is under heavy pressure to deal with a large number of migration hearings and the Court is doing its best to deal with as many as possible within the time frame.  It would be helpful to the Court if the Department of Immigration and Multicultural Affairs could arrange to check their database when matters are coming on for hearing.  In my view, it might be appropriate to do that anything up to a month before the hearing date, though I leave that to the department, because if applicants have left Australia then the Court can make suitable arrangements to use the time for the purpose of listing other matters.

5. The applicant has not appeared today. I am satisfied that the applicant has left Australia. Accordingly, I will dismiss the application under the provisions of r.13.03A for non-appearance by the applicant at the hearing.

6. This is a proper matter where the applicant should pay the costs of the respondent Minister.  Costs are sought in the sum of $3,500.00, which appears to me to be an appropriate figure. 

7. Had this matter proceeded to a hearing on its merits I would have joined the Refugee Review Tribunal.  In the circumstance, however, there seems to be no point in joining the Tribunal at the same time as I dismiss the application.  So I will refrain from taking that step.

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

Associate:  S.Polley

Date:  10 May 2006