SZBSE v Minister for Immigration

[2007] FMCA 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSE & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 909

MIGRATION – Persecution – review of Refugee Review Tribunal decision.

MIGRATION – Visa – protection visa – refusal.

MIGRATION – Tribunal functus officio.

MIGRATION – Tribunal had no jurisdiction as application filed out of time.

Migration Act 1958, s.412
Migration Regulations 1994, reg.4.31
Federal Magistrates Court Rules 2001, r.13.03A

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456

Applicants: SZBSE, SZKJF & SZKJG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 892 of 2007

Judgment of: Cameron FM

Hearing date: 4 June 2007

Date of last submission: 4 June 2007

Delivered at: Sydney

Delivered on: 4 June 2007

REPRESENTATION

There was no appearance by the Applicants.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That pursuant to r.13.03A(c), the application is dismissed.

2. That the first applicant pay the first respondent's costs fixed in the amount of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SGY 892 of 2007

SZBSE, SZKJF & SZKJG

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now approximately 10.54 and the matter has been called for a second time.  There is no appearance by the applicants.  When the matter was originally called at 10.20 there was no appearance by the applicants.  At that point the proceedings were adjourned in order that the applicants, should they simply be running late, would have sufficient time to arrive, and also in order that inquiries could be made, both of the Court and by the first respondent’s solicitors. 

2. Ms Mansour on behalf of the first respondent advises me that during the adjournment she has rung the applicants’ mobile telephone number and landline telephone number and on both occasions the call went to a message service.  My Associate has made inquiries of the registry of the Court at Queen's Square and it did not appear that the applicants were there.  Similarly, my Associate has called the matter on Level 7 of the John Madison Tower and on the ground floor and there was no sign of the applicants as a result of those calls.  We are currently sitting in Court 6A on Level 6 of the John Madison Tower. 

3. In the circumstances, the Minister has sought an order that the proceedings be dismissed pursuant to r.13.03A(c) for non-appearance.  I will make such an order. 

4. Before doing so, it is appropriate that I make the following observations which arise out of matters contained in the affidavit of Andrea Maree Mansour sworn 16 April 2007.  Firstly, the chronology of the applicants' claims for protection visas should be noted.  The chronology is this:

   a)on 14 March 2002 the Minister's delegate made a decision refusing the application for protection visas;