SZERK v Minister for Immigration
[2006] FMCA 522
•21 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 522 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant failed to appear – application dismissed pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001. |
| Applicant: | SZERK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3299 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 March 2006 |
| Date of last submission: | 21 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitor for the Respondent: | Mr Z. Chami, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The Applicant’s application is to be dismissed pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules.
The Applicant pay the First Respondent’s costs in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3299 of 2004
| SZERK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order that the applicant’s application filed in this Court on 9 November 2004 (sic) be dismissed pursuant to
r. 13.03A(c) of the Federal Magistrates Court Rules 2001 on the basis of the failure of the applicant to appear at today’s hearing.
From a procedural perspective, I note that, following the filing of the application on 9 November 2004, the applicant attended a directions hearing before the Registrar of this Court on 18 November 2004, at which time the matter was set down for hearing at 2.15 pm on 22 November 2005 before Mowbray FM.
I note that the applicant in her application identified an address for service and also identified a further address at Cabramatta. The address for service is a Sydney address.
On 28 February 2005 the Deputy Associate to Mowbray FM wrote to the solicitors for the first respondent and to the applicant at each of the identified addresses notifying them that the hearing would take place on 21 March 2006 at 2.15 pm. I note that the original of the letter addressed to the applicant at the Cabramatta address was returned to the Court, marked “no such address”.
On 29 August 2005, my Associate wrote to the first respondent’s solicitors and the applicant at her address identified for service, identifying the hearing date as 21 March 2006 at 2.15 pm. That is today.
The first respondent reads the affidavit of Olivia Oi Lam Mak (indistinct 2:42:14) sworn 20 March 2006. Ms Mak deposes that she attempted to telephone the applicant on 16 March 2006 and left a voicemail message confirming that the matter was listed for hearing today at 2.15 pm, and providing a contact telephone number for any query. I note that the telephone number that Ms Mak rang is the number identified by the applicant on her application filed 9 November 2004.
The first respondent tendered a letter, dated 14 March 2006, marked Exhibit 1R, being a letter sent to the applicant at both her address for service and the Cabramatta address, enclosing a copy of the respondent’s submissions and confirming the date for the hearing as 21 March 2006. I note there is an error in Exhibit 1R as to the time of the hearing which is identified as 10.15 am, rather than 2.15pm. However, any confusion that the applicant may have had as a result of that letter ought to have been dispelled by the message left by Ms Mak on the telephone number and the further two letters sent by the Court confirming the date as 21 March 2006 at 2.15 pm.
In the circumstances, I am satisfied that the applicant was aware of today’s hearing date and for whatever reason has chosen not to appear. There has been no communication received by this Court from the applicant, and indeed the only document filed in respect of this matter was the application filed on 9 November 2004.
I note that the application in its terms discloses no reviewable error, it being in the following terms:
“1. I fear persecution from my original country because I am a membership of a particular social group - Falung Gong.
2. I have been arrested by the Chinese authority. Thus my fear is well founded.”
The applicant was directed on 18 November 2004 to file an amended application by 24 March 2005. As stated earlier, no other document has been received from the applicant.
In the circumstances, I am satisfied that it is appropriate that the applicant’s application be dismissed pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $3,500. I am informed that, excluding work for today including appearance, the total expended by the first respondent is in excess of $3,800. I note that Schedule 1 of the Federal Magistrates Court Rules 2001 prepares for a sum in excess of the sum sought. In the circumstances I am satisfied that the sum sought is reasonable and I order that the applicant pay the first respondent’s costs in the amount of $3,500.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM.
Associate: S. Kwong
Date: 4 April 2006
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