SZBQU v Minister for Immigration
[2004] FMCA 501
•13 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQU v MINISTER FOR IMMIGRATION | [2004] FMCA 501 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa. PRACTICE AND PROCEDURE – Dismissal of application for non appearance by applicant notwithstanding jurisdictional error conceded by the Minister. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A
| Applicant: | SZBQU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ2174 of 2003 |
| Delivered on: | 13 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 August 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by or on behalf of the applicant
| Solicitors for the Respondent: | Mr B Cramer Blake Dawson Waldron |
ORDERS
The application filed on 16 October 2003 is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance.
The respondent is to use her best endeavours to bring these orders to the attention of the applicant.
There is no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2174 of 2003
| SZBQU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 15 August 2003 and handed down on 11 September 2003. The matter came before me today on the application of the respondent Minister. The circumstances are somewhat unusual. The Minister's legal advisers have determined that there is a jurisdictional error in the decision of the RRT in that the decision was based in part upon information obtained by the RRT that was not disclosed to the applicant. The Minister's advisers have come to the view that the information should have been disclosed pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) and that the failure to make the disclosure constitutes a jurisdictional error which invalidates the decision of the RRT.
In those circumstances the solicitors for the Minister have been attempting, without success, to contact the applicant to arrange for consent orders to be entered into. I received into evidence today two letters, one being a letter from my associate to the applicant at her two alternative addresses for service, dated 22 July 2004, advising the applicant of the situation and requiring her attendance at court today (exhibit C1). Exhibit C2 is a letter to similar effect from the solicitors for the Minister dated 21 June 2004 and posted the following day to the two alternative addresses for the applicant.
Those attempts to communicate with the applicant have been unsuccessful. There has been no contact from the applicant since her attendance at a directions hearing before Registrar Tesoriero on 19 February 2004. At that time the applicant was ordered to file and serve an amended application and any evidence upon which she intended to rely on or before 12 April 2004. She has not complied with the order to file an amended application and neither has any evidence been filed.
The matter has been called twice outside court this morning at 10.20am and 10.50am. An attempt to contact the applicant by telephone has failed because she has not provided any telephone number on which she could be contacted. In the circumstances, I have formed the view that the applicant has abandoned her application. In the light of that view, I am unwilling to grant the application even though the Minister was prepared to consent to orders remitting the matter to the RRT for re-determination according to law.
During the adjournment when the Court attempted to contact the applicant, Mr Cramer, for the Minister, sought instructions in relation to two issues raised by me. Those were that the preferable course might be to dismiss the application for non-appearance on the basis that either the applicant could seek to have the order vacated as an order made in her absence at which time consent orders be entered into, or alternatively, if the applicant resurfaced at some point, the Minister could, on advice, permit her to make a fresh protection visa application.
Upon taking those instructions Mr Cramer indicated that he was instructed to consent to, or at least not oppose, an order dismissing the application for non‑appearance. Because the order would be made in the absence of the applicant, under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), even after the order is entered, it can be vacated upon the application of the applicant if sufficient cause is shown.
I will therefore order that the application filed on 16 October 2003 be dismissed for default of appearance by the applicant at today's hearing, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules.
I will further direct that the respondent use her best endeavours to bring these orders to the attention of the applicant noting that order (1) was made in the absence of the applicant. Given the circumstances I will, in addition, order that there be no order as to costs.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 September 2004
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