SZAXG v Minister for Immigration

[2004] FMCA 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXG v MINISTER FOR IMMIGRATION [2004] FMCA 382

MIGRATION – Refugee Review Tribunal – visa – protection visa – application for review of decision by Refugee Review Tribunal – no appearance by applicant – application dismissed with costs.

Migration Act 1958 (Cth), s.474
Federal Magistrates Rules 2001, r.13.03A

Applicant: SZAXG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1227 of 2003

Delivered on: 29 April 2004

Delivered at: Sydney

Hearing date: 29 April 2004

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: No Appearance

Solicitor for the Respondent: Ms Warner

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $1,850.00.

3. I allow 28 days to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1227 of 2003

SZAXG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In respect of this matter, I note there is no appearance by either party and the court clock indicates that it is 4 minutes past 3, the parties have been called and neither the applicant nor the respondent have attended.  It is a matter where the respondent was originally represented by the firm of Sparke Helmore and the matter was transferred to the Australian Government Solicitor.  A notice of appearance was filed by the Australian Government Solicitor on 14 August 2003 and a notice of change of solicitor was filed by the Australian Government Solicitor on 19 August.

2. The respondent has appeared albeit a little late, I'm not aware of any reason why the applicant did not appear.  In this matter there is no appearance by the applicant, it is now 8 minutes past 3.  The applicant was present at the directions hearing on 28 August 2003 when the matter was listed for final hearing before me at 2.15 pm today.  The applicant has not filed any of the documents that he was required to file by 4 November 2003, he has not communicated with the court in any way; my associate has attempted to telephone him on the telephone number he gave to the court and he has not answered that call, indeed,  I am informed and I believe it to be true, that when she rang that number it was not answered and eventually rang out.

3. There is no explanation given as to why the applicant is not here, no message to say that he is ill or injured, no message to say that he is late, and no appearance on his behalf. Rule 13.03A of the Federal Magistrates Court Rules 2001 sets out a procedure to be applied by the court where there is a default of appearance of a party in a hearing, other than the first court date.  There are a number of matters set out, I propose to apply the procedures set out in paragraph (c) because where the party absent is an applicant, I propose to dismiss the application.

4. The application is dismissed.

5. The applicant pay the respondent's costs in the sum of $1850.  I'll allow 28 days to pay.  The application is otherwise dismissed. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  21 June 2004