SZDPG and Minister For Immigration

[2004] FMCA 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPG & MINISTER FOR IMMIGRATION [2004] FMCA 824

MIGRATION – Refugee Review Tribunal – application for review of decision affirming the decision of a delegate not to grant a protection visa to the applicant – where the applicant does not appear at the hearing no being the first court date – where the applicant’s solicitor attempted to file a Notice of Ceasing to Act but had forwarded an unsealed copy to the Respondent’s solicitors – solicitor granted leave to withdraw – application dismissed under
R. 1303A.

Judiciary Act 1903 (Cth) s. 9B
Federal Magistrates Court Rules 2001 r.13.03A

Applicant: SZDPG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1486 of 2004

Delivered on: 2 November 2004

Delivered at: Sydney

Hearing date: 2 November 2004

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: Ms Pyliotis
Ward Maxwell & Co

Counsel for the Respondent: Mr Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $4,000.00.

3. The Application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1486 of 2004

SZDPG

Applicant

And

MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application under s.39B of the Judiciary Act. The applicant asks the Court to review a decision by the Refugee Review Tribunal made on 20^th April this year, where the Tribunal affirmed a decision of the delegate of the respondent Minister not to grant the applicant a protection visa.

2. The application was listed for final hearing today.  The matter was due to commence at 2.15 and at that time the respondent's legal advisers were available.  There was no appearance at that stage by or on behalf of the applicant.  I was made aware of the fact, however, that the applicant's solicitors had sought to file a Notice of Ceasing to Act and the respondent's legal advisers were well and truly aware of that.  I did not have a copy of that document at that stage but I was shown a copy by Mr Kennett of Counsel for the respondent and I was satisfied that that was, in fact, the intention of the applicant's solicitors.

3. The applicant did not appear at 2.17 pm.  I stood the matter down for half an hour as is my practice in case the applicant was delayed.

4. I came back on at quarter to 3, called the matter again.  There was no appearance by the applicant himself.  I note Ms Pyliotis of the applicant's former solicitors appears.  She advised me that it was, indeed, the intention of the solicitor on the record to file a Notice of Ceasing to Act.  Due to an administrative problem the document had not actually been filed, even though an unsealed copy had been made available to the respondent's solicitor.

5. In my view, the applicant's solicitor on being aware of the situation acted in a responsible and courteous way toward the Court and Ms Pyliotis made her way to the Court with a great degree of urgency in order to confirm that that was, in fact, the situation, for which she deserves great credit.

6. The fact is that there is no explanation for the failure of the applicant to attend Court to prosecute his application. Rule 13.03A of the Federal Magistrates Court Rules makes it quite clear that in the circumstances where an applicant fails to attend on a hearing date other than the first Court date, then it is open to the Court to dismiss the application.
   In my view that is the appropriate procedure for me t adopt today.

7. Accordingly, the application will be dismissed.

8. Mr Kennett of counsel for the respondent also seeks an order for costs.  He seeks an amount of $4,000.00.  In my experience of these matters and in view of the matter before the Court today, I am satisfied that that is an appropriate amount to order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  2 November 2004