S1890 of 2003 v Minister for Immigration

[2006] FMCA 470

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1890 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 470

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 – applicant is a citizen of Pakistan claiming a well-founded fear of persecution – where applicant did not attend court.

PRACTICE & PROCEDURE – Delay – where Tribunal decision handed down on 4 April 1998 – where applicant applied to Federal Court for review but application withdrawn on 6 July 1998.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424, 424A
Federal Magistrates Court Rules r. 13.03A

Applicant: APPLICANT S1890 of 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1497 of 2005

Delivered on: 14 March 2006

Delivered at: Sydney

Hearing date: 14 March 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Ms Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Leave to join the Refugee Review Tribunal as a Respondent.

2. The Refugee Review Tribunal is joined as Second Respondent to the Application.

3. The Application is dismissed.

4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1497 of 2005

APPLICANT S1890 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal. It was made on 2^nd April 1998 and handed down that same day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection Visa.

2. I note that the Applicant commenced other proceedings in the Federal Court but chose not to continue with them. It would appear that at some stage he made an application to the High Court of Australia and that the application was subsequently remitted to the Federal Court and then presumably transported to this Court.

3. In any event, although the application was listed for Final Hearing at 2:15pm today the Applicant has not appeared. He was called at 2:15pm and again at 2:46pm and he has not appeared. I am informed and I believe it to be true that he has telephoned both members of the Court staff and Ms Dejean of the office of the Australian Government Solicitor advising of his intention not to proceed with the application.

4. If of course he chose to discontinue he would need to seek leave to do so, as leave is required when an application is sought to be discontinued within 14 days of the Final Hearing date.

5. The Applicant has chosen not to do so. He has not appeared and it is my understanding that he is unlikely to appear. I propose to dismiss the application for non appearance by the Applicant, under the provisions of Rule 13.03A of the Federal Magistrates Court Rules.

6. There is an application for costs in the sum of $4,000.00 and I understand that that would be inclusive of counsel's fees. It is appropriate for a costs order to be made, because the Minister's legal advisers have had to prepare the matter for hearing, which includes briefing counsel. The matter certainly appears to me to be ready for hearing on the part of the Minister and indeed I have even received a Written Outline of Submissions from counsel who has been briefed and who appears here today.

7. There is an amount of $4,000.00 sought inclusive of counsel's fees. That seems to me to be eminently reasonable and well within the scale set out by the Federal Magistrates Court Rules.

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

Associate:  Virginia Lee

Date:  5 April 2006