SZBUS v Minister For Immigration and Anor (No.2)
[2006] FMCA 545
•18 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 545 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – application previously dismissed with costs – orders set aside by the Federal Court and further hearing ordered – non-appearance by the applicants. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| SZBUS & Anor v Minister for Immigration [2005] FMCA 367 SZBUS v Minister for Immigration [2005] FCA 1223 SZCPD v Minister for Immigration [2006] FMCA 391 SZDGB v Minister for Immigration [2006] FMCA 341 |
First Applicant: Second Applicant: | SZBUS SZBUT |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2341 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 18 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2006 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court notes that a serious issue to be tried remains in these proceedings.
The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to both proceedings in this Court, fixed in the sum of $5,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to serve a sealed copy of these orders on the applicants by ordinary pre-paid post at their last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2341 of 2003
| SZBUS |
First Applicant
SZBUT
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for judicial review in relation to a decision of the Refugee Review Tribunal (“the RRT”) handed down on 7 October 2003. The matter has been dealt with by me previously, and the background is set out in my earlier judgment of SZBUS & Anor v Minister for Immigration [2005] FMCA 367. In that proceeding on 21 March 2005, I dismissed the judicial review application and awarded costs in favour of the Minister fixed in the sum of $4,000.
The applicants appealed to the Federal Court against my judgment and on appeal were successful on an issue not raised before me, namely, whether s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) had been breached. The decision of Allsop J of the Federal Court is reported as SZBUS v Minister for Immigration [2005] FCA 1223. His Honour ordered that the RRT be joined as a party to the appeal. He allowed the appeal. He set aside the orders I made on 21 March 2005 and he remitted the matter to this Court for any further rehearing. The Minister was also ordered to pay the appellants’ costs, if any.
The matter came before me on rehearing for directions on 23 November 2005. At that time I made a number of orders joining the RRT as the second respondent in the proceeding in this Court and requiring the applicants to file and serve any further affidavit evidence upon which they intended to rely by 24 February 2006. Nothing further has been filed. I listed the matter for hearing before me today at 2.15 pm.
When the matter was called today there was no appearance by or on behalf of the applicants. The matter has been called three times and on the third occasion the first applicant was called by name. There is no explanation for their non-attendance. I note that the applicants live in Griffith, and with that in mind I adjourned for a time to give the applicants the opportunity to appear, albeit late, and also my associate made an attempt to contact the applicants on a mobile telephone number nominated by them in the earlier proceedings in this Court. It appears that the mobile telephone number has been disconnected.
There being no appearance by or on behalf of the applicants, and no explanation for their non-attendance, and the applicants being aware of the need to attend court today, both by having attended the directions before me on 23 November 2005 and as a result of a letter sent to them by the Minister's solicitors dated 3 April 2006 (exhibit R1), I have decided to dismiss the judicial review application, pursuant to rule 13.03AC of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In making that order, I note that there is clearly in this case a serious question to be tried. The Federal Court has found a jurisdictional error in the decision of the RRT under review. The matter was remitted to this Court to deal with a resulting issue of judicial discretion. I note the observations made by Allsop J on appeal at paragraph 20 of his judgment.
The issue of discretion arises because the first applicant had declined an invitation to attend a hearing before the RRT (court book, page 64). The issue would then be whether there was any point in a further hearing before the RRT if the applicant had nothing further to say.
I note in that connection that the circumstances in this case are very similar to those I dealt with in SZCPD v Minister for Immigration [2006] FMCA 391 at [9] and [10]. Conversely, the observations I made in SZDGB v Minister for Immigration [2006] FMCA 341 at [24] to [26] would be relevant in considering the question of whether the result might have been different before the RRT if a more useful hearing invitation had been sent to the applicants.
Given the significance of the unresolved issue, if sufficient cause could be shown by the applicants for their non-attendance today, I would be minded to reinstate the application.
That leaves the question of costs. In the earlier proceedings in this Court I awarded $4,000 in costs to the Minister. That order has been set aside by the Federal Court on appeal, but in relation to an issue raised for the first time on appeal. In effect, the costs incurred by the Minister in the initial proceedings in this Court were costs thrown away. The earlier proceeding in this Court may as well have not occurred. The result of the non-appearance of the applicants today means that further costs incurred by the Minister have been wasted.
I am told that those additional costs amount to $3,900. Considering the matter overall and on a party/party basis, I have decided to order that the applicants pay the Minister's costs and disbursements of and incidental to both proceedings in this Court, fixed in the sum of $5,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 April 2006
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