SZCLC v Minister for Immigration

[2005] FMCA 1475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLC v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1475

MIGRATION – Visa – protection visa – application for review of Refugee Review Tribunal decision affirming a decision not to grant a protection visa – Applicant a citizen of Poland claiming a fear of persecution because of practice of Scientology – where applicant did not attend the court hearing.

COSTS – Circumstances justifying order.

Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.424A, 475A.
Federal Magistrates Court Rules 2001, Rule 13.03A.

Applicant: SZCLC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 65 of 2004

Delivered on: 29 September 2005

Delivered at: Sydney

Hearing date: 29 September 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Ms Morgan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed for non-appearance by the Applicant pursuant to Rule 13.03 A(c) of the Federal Magistrates Court Rules2001.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 65 of 2004

SZCLC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision made by the Refugee Review Tribunal on 22^nd December 2003. The Applicant has not appeared. The Applicant attended before Registrar Hedge on the afternoon of 2^nd April 2004 when the application was listed for final hearing at 2:15p.m. today.  It would seem to me that the Applicant has had more than sufficient time to be made aware of the hearing date.

2. For some reason the Applicant has not attended and he did not appear when the matter was called at 16 minutes past 2, or at 14 minutes to 3.  My Court staff have made enquiries and the Applicant does not appear to have made his way to the Court in Queen's Square by mistake, nor has any faxed medical certificate or any other faxed document been received, nor has any telephone call been received indicating that the Applicant has somehow been hindered or delayed.

3. Whilst I would be reluctant to dismiss a matter only a few minutes after the appointed time, as it is over half an hour since the matter was scheduled to commence, in my view it is appropriate to apply the provisions of Rule 13.03A(c) and I intend to dismiss the application due to the non-appearance of the Applicant at the hearing.

4. There is an application for costs in the sum of $3,700.00.  I propose to make an order that the Applicant pay the Respondent's costs.  It is the practice of this Court to award costs in a lump sum and I intend to do so today.  The sum sought is inclusive of counsel's fees and is sought on a party and party basis.  It is well within the scale set out by the Federal Magistrates Court Rules 2001. It is a highly appropriate figure.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  7 October 2005