SZAMN v Minister for Immigration

[2004] FMCA 131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAMN v MINISTER FOR IMMIGRATION [2004] FMCA 131

MIGRATION – Review of Refugee Review Tribunal decision – non-attendance by Applicant – evidence that Applicant has left Australia.

Migration Act 1958, s.91X
Federal Magistrates Court Rules 2001, Rule 13.03A

Applicant: SZAMN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 718 of 2003

Delivered on: 27 February 2004

Delivered at: Sydney

Hearing date: 27 February 2004

Judgment of: Scarlett FM

REPRESENTATION

There was no appearance by the Applicant.

Solicitor for the Respondent: Mr Muthalib

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs of and incidental to this application in the sum of $2300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 718 of 2003

SZAMN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application for a review of a decision by the Refugee Review Tribunal handed down on the 2^nd April 2002. The Tribunal affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The applicant is referred to under the letters SZAMN as the identity of applicants is protected by section 91X of The Migration Act 1958.

2. What has happened in this matter is that the respondent has ascertained that the applicant has in fact left Australia and has not returned.  I have before me an affidavit sworn today 27 February 2004 by Ishan Fuad Muthalib, a solicitor who has the carriage of this matter under the supervision of his principals.  He deposes that he has been provided with information by one Fiona Luongo, Senior Legal Officer from the Department of Immigration and Multicultural and Indigenous Affairs, relating to the departure of the applicant from Australia.

3. The evidence that is annexed to Mr Muthalib's affidavit is a print out which shows that a person of the same name and the same date of birth and for that matter, the same gender as the applicant, in fact did depart from Australia on the 19^th July 2003.  He appears to have left by Singapore Airlines flight 232.  The only other entry on the document shows the applicant's arrival on the 6^th August 1995 and there is no evidence to show that he has since re-entered Australia.

4. The applicant was called three times outside the court and he did not appear.  I am satisfied that the applicant is not going to appear just as I am satisfied that the applicant has in fact left Australia and has not returned.

5. Mr Muthalib for the respondent in the circumstances has asked the Court to dismiss the application on the basis that the applicant has not appeared and is not likely to appear.

6. The Court has the power to do this under Rule 13.03A of the Federal Magistrates Court Rules 2001 which provides that if a party to a proceeding is absent from a hearing other than the first Court date, the Court may, paragraph (c):

   If the party absent is an applicant or a respondent who has made a cross-claim, dismiss the claim or the cross-claim.

7. In my view, as it is clear that the applicant has not appeared and is not likely to appear.

8. I propose to dismiss the application, and I make an order for costs in favour of the respondent.

9. It is for these reasons that I make the Orders as set out at the commencement of this decision.

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

Associate:  C. Soliman

Date:  4^th March 2004