SZAMC v Minister for Immigration
[2004] FMCA 204
•25 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMC & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 204 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of Refugee Review Tribunal to affirm the decision of the Delegate of the Minister to refuse protection visas to the applicants – where applicants did not attend the hearing. Migration Act 1958 (Cth) NAQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 58 |
| Applicant: | SZAMC & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 705 of 2003 |
| Delivered on: | 25 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
There was no appearance by the Applicants.
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicants are to pay the Respondent’s costs of and incidental to this Application in the sum of $4000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 705 of 2003
| SZAMC & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the applicants who are husband and wife for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the respondent Minister to reject their application for protection visas.
The applicants are citizens of the Ukraine. They came to Australia in September 2000 and applied for protection visas the following month.
On the 29th January 2001 a delegate of the minister rejected their application. They then made an application to the Refugee Review Tribunal on the 21st February 2001 for a review of that decision. The application came on for hearing before the Refugee Review Tribunal on the 17th May 2002.
The applicant husband, upon whose claim for status the wife depends, indicated that he did wish to attend the hearing and duly did so accompanied by his Migration Agent. On the 20th March 2003 the Refugee Review Tribunal made a decision affirming the decision of the delegate not to grant protection visas to the applicants.
The applicants then sought relief from this Court. They made an application which, as Mr Kennett for the respondent says in his written submission, sets out three grounds which allege in substance that:
(a)The Tribunal had no evidence to justify the making of the decision.
(b)The Tribunal was wrong to rely on the husband's visa application rather than his internal passport.
(c)That the Tribunal's findings about "Propiska" were incorrect.
It is unnecessary in the circumstances for me to comment on the adequacy or otherwise of the grounds set out in the application because the applicants have not attended Court today. One of the applicants did attend Court on the 25th June 2003 when the matter was listed for hearing today. It is 25 February, exactly eight months after that date. There was ample time to prepare the matter for hearing. The respondent has certainly prepared the matter for hearing and the respondent's written submissions were filed at this Court as long ago as the 23rd November 2003. The Court book was prepared in duplicate and is available.
The matter was listed for hearing at 10.15 am today. At 10.16 am the applicants were called three times outside the Court. There was no answer to the call. I stood the matter down in case the applicants were running late for some reason, or in case some message had been sent through the Court indicating their inability to attend due to illness, injury or transport difficulties et cetera.
I indicated that I would call the matter again at 10.45 am. In the intervening time the solicitor for the respondent very sensibly telephoned the home number given by the applicants in an effort to inquire as to their whereabouts. I am informed by Mr Kennett of counsel that the only reply was from a recorded voice answering machine. I have not been made aware of any message sent to the Court by or on behalf of the applicants that they have been delayed or prevented from attending Court today for any reason.
There is an application from the respondent that I should deal with the matter under Rule 13.03A of the Federal Magistrates Court Rules 2001. This rule provides, in respect of sub rule (c) that if a party to a proceeding is absent from a hearing other than the first Court date the Court may dismiss the application or the cross claim.
I have, in proceedings before me previously, applied that rule. In the matter of NAQW and the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 58, a matter heard on 27 January this year, I dismissed that application in similar circumstances under that same rule. I propose to do the same today.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 25 March 2004
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