SZFEC v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 732

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – jurisdiction issue.

PRACTICE & PROCEDURE – Prior proceedings in the Federal Magistrates Court for review of RRT decision – where applicant did not attend court for the hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.412
Migration Litigation Reform Act 2005 (Cth), s.42
Federal Magistrates Court Rules 2001 r.13.03A(c)

SZFEC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 803
SZFEC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1391

Applicant:

SZFEC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 826 of 2006

Judgment of:

Scarlett FM

Hearing date:

5 May 2006

Date of Last Submission:

5 May 2006

Delivered at:

Sydney

Delivered on:

5 May 2006

REPRESENTATION

The Applicant:

No appearance

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed pursuant to Rule 13.03A(c) due to the non-appearance by the Applicant at Court.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 826 of 2006

SZFEC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application to review a decision of the Refugee Review Tribunal.
The application was always going to be problematic in that the Tribunal had held that it did not have the jurisdiction to deal with the applicant's application for review of the decision.
I listed the matter for final hearing today. The applicant has not appeared. It is now 2.44 pm. I understand that the applicant telephoned the solicitor for the respondent Minister on Wednesday the third of this month seeking an adjournment, which was no acceded to.
I also understand that the applicant telephoned my associate and spoke to her, but was informed that the Court would not grant an adjournment on an ex parte basis, and that an application for an adjournment would only be considered if there was a consent from the respondent.

No such consent was forthcoming.
The applicant, in my understanding, was left with a clear indication that the matter was still listed for hearing for today, and that it would be necessary for him to attend. He had attended in person when the matter was first before the Court on 24^th April.
I see no reason why the matter should remain in the list. The applicant has not appeared. I propose to dismiss the application for the

non-appearance of the applicant under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules.
The application will be dismissed for non-appearance.
There is an application for costs on behalf of the respondent in the sum of $2,000.00. This is an application that had to be prepared for final hearing, and Ms Radich from the respondent's solicitors has attended today ready to run the matter, and indeed has filed an outline of written submissions of some detail.
The amount sought is $2,000.00 inclusive, which to my mind is eminently reasonable in the circumstances.

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

Associate: S.Polley

Date: 12 May 2006

The case of SZFEC v Minister for Immigration involves an application for judicial review of a decision made by the Refugee Review Tribunal (RRT) that affirmed a delegate's decision not to grant a protection visa to the applicant. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether it had jurisdiction to hear the application given that the applicant had not attended the scheduled hearing in the Federal Magistrates Court, where the application was initially filed. The applicant's absence at the hearing raised questions about the procedural fairness of continuing with the case and the court's ability to exercise its jurisdiction.

The court determined that the Federal Circuit and Family Court of Australia did not have jurisdiction to proceed with the application due to the applicant's non-appearance at the hearing. According to Rule 13.03A(c), if the applicant fails to appear at the hearing, the application may be dismissed. The court emphasised the importance of procedural fairness and noted that the applicant's absence deprived the court of the opportunity to assess the merits of the application. Consequently, the court dismissed the application and ordered the applicant to pay the Minister's costs in the sum of $2,000.00.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established