S2021 of 2003 v Minister for Immigration

[2006] FMCA 731

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S2021 OF 2003 v MINISTER FOR IMMIGRATION [2006] FMCA 731

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming decision of a delegate of a delegate of the Minister no to grant a protection visa.

PRACTICE & PROCEDURE – Where applicant did not appear for the hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 474
Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: APPLICANT S2021 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 676 of 2004

Judgment of: Scarlett FM

Hearing date: 9 May 2006

Date of Last Submission: 9 May 2006

Delivered at: Sydney

Delivered on: 9 May 2006

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Ms Mason

Solicitors for the Respondent: Sparke Helmore

ORDERS

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

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 676 of 2004

APPLICANT S2021 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision has been around for a while; it was made on 19^th May 2000 and handed down on 6^th June 2000.  The applicant apparently took some steps to have the matter dealt with in a certain class action before the High Court of Australia.

2. In any event, the application here was not filed until 11^th March 2004, and the solicitors for the respondent Minister not surprisingly filed a notice of objection to competency on 22^nd June 2004 pointing out that the application was out of time, under sub-s. 477(1A) of the Migration Act.

3. The matter was listed for final hearing today at 2.15 pm.  The matter had been dealt with at a call over before a Registrar of this Court on
   1^st February 2005.  It seems to me that there was ample time for the applicant to prepare for the hearing, and indeed obtain whatever legal advice he considered appropriate.

4. An interpreter has been arranged, but as the applicant is not here, the interpreter has now been excused.

5. There is just no appearance by the applicant.  The time is now 19 minutes to 3.  When the matter was first called I inquired whether there had been any message from the applicant indicating lateness or delay for some reason, and was told there was none.

6. I adjourned the matter, and inquiries were made to see whether any message had been faxed or telephoned through indicating the applicant had been delayed or hindered or somehow prevented from attending.  There is no message of any sort.  There is no explanation for the applicant's failure to appear today.

7. The application is listed for final hearing, and the respondent Minister is certainly ready to proceed.  Counsel has been briefed, and if the applicant were here, the application could commence immediately.

8. I am asked, and I propose to accede to this request, to dismiss the application under the provisions of Rule 13.03A(c) on the basis that there is no appearance by the applicant.

9. There is also an application for costs in the sum of $5,000.00 inclusive of counsel's fees.  In my view, bearing in mind the work that has had to be done and the fact that the respondent has had to prepare this matter for a defended hearing, that seems to me to be a reasonable sum.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  19 May 2006