SZFFE v Minister for Immigration

[2005] FMCA 1445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFE v MINISTER FOR IMMIGRATION [2005] FMCA 1445

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India.

PRACTICE & PROCEDURE – Here applicant did not attend the court – where evidence tendered showing the applicant has departed Australia.

Federal Magistrates Court Rules 2001, R. 13.03A(c)

Applicant: SZFFE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:	SYG 3606 of 2004
Judgment of:	Scarlett FM

Hearing date: 20 September 2005

Date of Last Submission: 20 September 2005

Delivered at: Sydney

Delivered on: 20 September 2005

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Mr Sim
Clayton Utz

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) due to the non-attendance of the Applicant at Court.

2. The Applicant is to pay the Respondent's costs fixed in the sum of $3500. 00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3606 of 2004

SZFFE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter I note that there has been no appearance by the applicant.  Mr Sim, solicitor, appears for the respondent Minister. 

2. I note from the affidavit of Mr Sim, sworn on 31 August 2005, that he has received information from Ms Nicole Morrison, a legal officer employed by the Department of Immigration and Multicultural and Indigenous Affairs.  That information is a movement check which is a record produced through an electronic database maintained by the respondent Minister's department and that records the movement of persons into and out of Australia.

3. According to Mr Sim's affidavit, the movement check record details that the applicant departed Australia on 6 April 2005.  The applicant departed Australia whilst on a bridging visa E (class WE) but that is a visa that does not entitle the applicant to re-enter Australia. 

   
   

   The movement record check record also indicates that the applicant departed Australia from Kingsford-Smith Airport on 6 April 2005.

4. The respondent's solicitor deposes that at the date of swearing the affidavit, namely 31^st August, the respondent's solicitors were not informed by the applicant of her departure from Australia or her intentions in relation to those proceedings.

5. In my view the situation is quite clear.  The fact that the applicant departed Australia as long ago as April 2005 on a visa that does not entitle re-entry to Australia, would indicate an intention not to proceed with this application.

6. I intend to dismiss the application under the provisions of R 13.03A(c) due to the applicant's non-attendance at Court.

7. There is an application for costs, in the circumstances by the respondent's solicitor. It appears to me that these are circumstances that justify an order for costs in the amount of $3,500.00 in a lump sum, seems to me to be an appropriate figure and well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  28 September 2005