SZDUP v Minster for Immigration
[2005] FMCA 584
•8 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUP v MINSTER FOR IMMIGRATION | [2005] FMCA 584 |
| MIGRATION – Review of Refugee Review Tribunal decision – failure of applicant to attend hearing – primary application dismissed. Migration Act 1958 (Cth) |
| Applicant: | SZDUP |
| Respondent: | MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1778 of 2004 |
| Delivered on: | 8 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 April 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The application of 10 June 2004 be dismissed pursuant to r.13.03A(c) of the Federal Magistrate Court Rules 2001 for failure of the applicant to attend the hearing.
The applicant pay the respondent’s costs fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1778 of 2004
| SZDUP |
Applicant
And
| MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore decision which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal). In this matter the Tribunal made its decision on
23 April 2004 and handed down that decision on 19 May 2004. The decision of the Tribunal affirmed the decision of the delegate not to grant a protection visa.
I propose to dismiss this matter pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the absence of the applicant from the hearing. My reasons are briefly as follows.
When the matter was first called a little later than 10.20am there was no appearance by the applicant. I stood the matter down until just after 10.30am at which time the matter was called again and there was still no appearance by the applicant.
The respondent sought that the matter be dismissed with costs for failure of the applicant to attend.
I note that on 10 June 2004 the applicant filed an application in this Court seeking review of the Tribunal decision. That matter came up for a first court date on 16 September 2004 at which the applicant was present and agreed to orders, the fourth of which provided that the matter would be listed for final hearing at 10.15 am on 8 April 2005 before myself at John Maddison Tower.
The applicant filed what purports to be an amended application on 1 November 2004. It is apparent from the court file that she was provided with advice by a panel member from the Federal Court Legal Advice Scheme on 22 February 2005.
There is nothing on the file to indicate why the applicant was unable to attend the hearing or to suggest any attempt by the applicant to have the hearing’s date vacated and another date substituted.
In the circumstances she falls within the ambit of r.13.03A(c) where dismissal for failure to attend is discretionary.
I have given consideration to whether there might be any discretionary matters which should be taken into account and which would compel me not to exercise that discretion. I am not aware of any.
I therefore dismiss the application of 10 June 2004 with costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Z Chiam
Date: 12 May 2005
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