SZAMS v Minister for Immigration

[2004] FMCA 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAMS v MINISTER FOR IMMIGRATION [2004] FMCA 130

MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection Visa – no appearance by Applicant.

Migration Act 1958
Federal Magistrates Court Rules 2001, Rule 13.03A

Applicant: SZAMS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 722 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 Cramer

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 $3500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 722 of 2003

SZAMS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application by the applicant known as SZAMS for a review of a decision by the Refugee Review Tribunal handed down on the 6^th February 2002. That decision affirmed a decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

2. On the 1^st March 2002, within the time prescribed, the applicant made application to the Federal Court for a review of that decision alleging certain matters which it is unnecessary for me to traverse at this stage.  That application for review was dismissed on the 31^st May 2002 in the Federal Court by the Honourable Justice Tamberlin.

3. On the 19^th June of that year, the applicant filed a Notice of Appeal. He discontinued that appeal on the 30^th October and commenced the present proceedings on the 1^st May 2003.

4. The applicant has not appeared today. I have admitted into evidence an affidavit filed today by Benjamin Alexander Cramer, solicitor, who has had the day to day conduct of the matter on behalf of the respondent.  In his affidavit, he deposes to a telephone conversation with the applicant on Tuesday, 24th February, after having received a facsimile from him.  A copy of the facsimile is annexed to Mr Cramer's affidavit and marked with the letter "B".  The text of the document says:

   I wish to withdraw my case from Federal Magistrates Court due to financial difficulties.

5. Mr Cramer telephoned the applicant as a result of that telephone conversation and informed him that under Court rules, due to the imminence of the hearing, he would need the Court's permission to withdraw and some discussions took place about a consent order. 

6. Mr Cramer said in his affidavit that the applicant said to him,

   
   "I understand"

   .  The affidavit indicates that Mr Cramer then forwarded a copy of the consent order which he had prepared to the applicant. 

   
   

   I am informed this morning, that the proposed consent order has never been received and the applicant was called three times outside the Court this morning and he has not appeared.

7. The respondent now seeks that the application should be dismissed. Rule 14.03A of the Federal Magistrates Court Rules 2001 allows such a procedure if a party to a proceeding is absent from hearing other than the first Court date.

8. In my view it is appropriate to dismiss the application.  I am also asked for an order for costs in favour of the respondent and I consider that is appropriate. The sum sought by way of a costs order is the amount of $3500.  From my perusal of the file I am of the belief that that is an appropriate amount to be considered and I propose to  make that order.

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:  5^th March 2004