SZAYF v Minister for Immigration
[2004] FMCA 898
•15 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAYF v MINISTER FOR IMMIGRATION | [2004] FMCA 898 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant. |
| Applicant: | SZAYF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1331 of 2003 |
| Delivered on: | 15 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 15 November 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
There being no appearance by the applicant, the application is dismissed pursuant to rule 13.03A(c) of the Federal Magistrate's Court Rules.
That the applicant pay the respondent's costs set in the amount of $4250.
That the solicitor for the respondent notify the applicant of the orders made today and of the effect of Rule 16.05 of the Federal Magistrates Court Rules by letter sent to the last notified address for the applicant by prepaid post within seven days of today's date.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1331 of 2004
| SZAYF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 June 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant sought review of the matter by application filed in this court on 14 July 2003. He attended a directions hearing on 4 September 2003 at which he was ordered to file and serve an amended application. The matter was listed for hearing initially on 29 October 2004 and he was ordered to file and serve written submissions, as was the respondent.
On 23 April 2004 the court wrote to the applicant advising that the hearing date of 29 October 2004 had been vacated and the matter would proceed on Monday, 15 November 2004 at 10.15am.
The court received an undated letter from the respondent which came to the attention of chambers on 10 November 2004, asking that the hearing scheduled for 15 November 2004 be postponed for three months due to medical reasons. Enclosed was a medical certificate and a copy of a letter from the emergency department of St Vincent's Hospital. The applicant asked to be advised of the new date as a matter of urgency and provided a post office box number. He did not provide any telephone contact number and could not be contacted on the original numbers provided.
The a medical certificate from St Vincent’s Hospital certified that the applicant had attended the hospital for a chest examination on 3 November 2004, and was unable to follow his occupation from 3 November to 4 November 2004 and that it had been arranged for him to be return for an assessment in a month's time. The certificate was accompanied by a letter dated 1 November 2004 signed by a Registrar in Emergency “Medici” (sic) addressed to the Emergency Department at St Vincent's Hospital stating that the applicant presented to the emergency department on 1 November 2004 with a contrast reaction, that the diagnosis was anaphylactic reaction due to IV contrast, that he had been treated and responded well, and that he needed a referral to an allergy specialist to determine the allergy and whether or not he could ever have contrast media again.
The respondents did not consent to an adjournment. Accordingly the court wrote to the applicant at the address provided on 10 November 2004 by a letter sent by express post advising him that as the solicitors for the respondent did not agree, it would be necessary for him to attend court today, 15 November 2004, and that if he did not do so final orders may be made dismissing his application.
He was not present at court when the matter was called and he could not be contacted in a 15 minute adjournment, either on the telephone number that he had originally provided as a home number, or through a former employer. He was not present when the matter was called again after the adjournment.
In these circumstances the respondent seeks that the application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules in the absence of the applicant. While the applicant did seek an adjournment, he was not notified that his application was successful. Instead a letter was sent to him advising him that it would be necessary for him to attend the court today. The adjournment that he sought does not appear on the material before the court to be warranted by the medical certificate for two days earlier this month or by the statement that he had an anaphylactic reaction that was treated and to which he had responded well on 1 November 2004.
In all the circumstances of this case, I consider that it is appropriate to dismiss the proceedings in the absence of the applicant. The usual order should be made for the respondent's solicitors to bring to the attention of the applicant the effect of Rule 16.05 of the Federal Magistrates Court Rules.
The respondent also seeks that the applicant pay costs in the sum of $4500. In the light of the nature of this and other similar proceedings I consider that the sum of $4250 is an appropriate amount and that the costs should be paid by the unsuccessful applicant.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 November 2004
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