SZAKT v Minister for Immigration
[2007] FMCA 1270
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1270 |
| MIGRATION – Review of decision by Refugee Review Tribunal – Practice and Procedure – whether Court has jurisdiction to dismiss an application for non appearance of an applicant infant child when no litigation guardian had been appointed – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001. |
| Federal Magistrate Court Rules 2001, r.13.03A(c) |
| Acpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 R v Danaher; Ex parte Olzier Industries Pty Ltd [1969] VR 445 SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1667 |
| Applicant: | SZAKT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1961 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Mr J. Dooley, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1961 of 2007
| SZAKT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order that the proceeding in this Court commenced by way of application, filed on 25 June 2007, be dismissed pursuant to r.13.03A(c) of the Federal Magistrate Court Rules 2001 by reason of the failure of the applicant to appear at today's hearing. It should be noted that the applicant is, in fact, an infant child who was born on 24 August 2002.
The application seeks judicial review of a decision of the Refugee Review Tribunal in respect of which notification is said to have been received on 8 May 2007.
The matter was before this Court for the first time on 12 July 2007.
On that occasion there was no appearance by or on behalf of the applicant resulting in the Court making the following orders that it did on that occasion:
“1. By consent, Muhammad Ali is to file and serve an application to be appointed as litigation guardian of the applicant, being a child born on 24 August 2002, together with any evidence in support by way of affidavit by 18 July 2007.
NOTE the affidavit evidence is to include details of relationship of Muhammad Ali to the applicant and whether Muhammad Ali has any interest in the proceeding adverse to that of the applicant.
NOTE there was no appearance at today’s hearing by or on behalf of the applicant at the scheduled time. Upon inquiry by the first respondent’s legal representative and with the assistance of a Bengali interpreter, the telephone number identified on the application was rung and Muhammad Ali answered and informed the first respondent’s legal representative that he was the father of the applicant and was presently in Melbourne, although he was returning to Sydney tomorrow. A telephone hook-up was then arranged by the Court in which Muhammad Ali sought to be appointed as litigation guardian of the applicant.
2. Muhammad Ali is to pay the first respondent’s costs of today fixed in the amount of $500 within 7 days.
NOTE if the costs in Order 2 are not paid prior to the hearing of the application referred to in Order 1 then the Court may not proceed to consider any such application.
3. Any application by Muhammad Ali to be appointed litigation guardian of the applicant is set down for hearing at 20 July 2007 at 2.15pm.
NOTE in the event there is no application made for appointment of a litigation guardian for the applicant or there is no appearance at the hearing of such an application, then proceeding SYG1961 of 2007 may be dismissed without further notice on the basis it is an invalid application.
4. Direct the first respondent to send a copy of this Order to the applicant and to Muhammad Ali at 18/1A Hollingshed Street, Mascot forthwith.”
There has no been communication to this Court or to the first respondent's lawyers received on behalf of the applicant seeking any adjournment of today's hearing. Nor has there been any document filed with this Court in accordance with the orders made on 12 July 2007. In particular, there is no application before this Court for the appointment of a litigation guardian in respect of the applicant child in accordance with Order 3 of the Orders made on 12 July 2007.
The first respondent's solicitor, Mr Dooley, submits that this Court has jurisdiction to dismiss the proceedings pursuant to r.13.03(A)(c) of the Federal Magistrates Court Rules 2001 on the basis that the application is not a nullity by reason of the fact the applicant is a child. In support of that proposition Mr Dooley referred the Court to Acpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 at [26] where a passage of Newton J in R v Danaher; Ex parte Olzier Industries Pty Ltd [1969] VR 445 at 446 is referred to as follows:
“…it is also established that if proceedings are begun in a superior court in the name of an infant but without a next friend, they are not a nullity: this is so even if there are rules of court which specifically require an infant to sue by a next friend.”
The Federal Magistrates Court Rules 2001 do require the appointment of a litigation guardian in respect of a child. Mr Dooley also referred the Court to a matter of SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1667 where Jacobson J was satisfied that the Court had jurisdiction to dismiss an application for non appearance of an infant child even though no litigation guardian had been appointed.
In the circumstances, I am satisfied that the proceeding before this Court is not a nullity for the purpose of, at least, either entertaining an application for the appointment of a litigation guardian or for dismissing the application on the basis sought by the first respondent.
Accordingly, the proceeding commenced by way of application, filed on 25 June 2007, is dismissed.
I will reserve the question of costs. However, if the first respondent makes no application for costs by 27 July 2007, then the order of this Court will be no order as to costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 23 July 2007
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