SZDLF v Minister for Immigration

[2004] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLF v MINISTER FOR IMMIGRATION [2004] FMCA 795

MIGRATION ─ Refugee.

Applicant: SZDLF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1264 of 2004

Delivered on: 14 October 2004

Delivered at: Sydney

Hearing date: 14 October 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Rachel Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4800 pursuant to rule 21.02(2A) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1264 of 2004

SZDLF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me today an application filed in this Court on 30 April 2004 seeking review of the decision of the Refugee Review Tribunal made on 30 March 2004 and handed down on 22 April 2004 affirming the decision of a delegate of the respondent Minister made on

   
   

   7 February 2003 refusing a protection (class XA) visa to the applicant.

2. The applicant is a citizen of India who arrived in Australia on

   
   

   27 October 2002 on a visitor's visa. He lodged an application for a protection visa with the respondent Minister's Department on

   
   

   12 November 2002. On 10 August 2004 the applicant attended the first Court date in this matter where he signed “short minutes of order” which subsequently became orders of the Court and in particular [order 4] that the matter be listed for hearing at 2.15 p.m. on 4 October 2004 at the John Maddison Tower. The matter was called both outside the Court and in the foyer of the Court and the applicant did not appear. The applicant was subsequently contacted by phone and appeared in this matter through this telephone attendance. The applicant expressed a desire to withdraw his application. The Minister's counsel has submitted that I should dismiss this matter. The applicant has made his intention known to the Court that he does not wish to proceed and has been given an opportunity to put to the Court any matters if he wished to do so. It is not appropriate in my view that I grant leave to discontinue in this matter as no notice of the decision to withdraw was given prior to the time set down for hearing and in those circumstances [where the applicant was rung by the Court after the time set down for hearing] I consider it appropriate that this application be dismissed.

3. In these circumstances it is appropriate that the applicant meet the respondent's costs. The Minister has gone to expense in preparing for this hearing, costs have been incurred and wasted. The applicant in response to the Minister's counsel's request that I set costs at $4800 has responded that this is too much. This is not of itself sufficient reason not to award these costs and I consider that it is an appropriate amount to set in accordance with the Federal Magistrates Court Rules [given that the applicant had notice of the hearing date and chose not to take effective action to discontinue].

4. In all these circumstances therefore I make the following orders.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

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

Associate:  Wagma Aziza

Date:  08 November 2004