SZFGN v Minister for Immigration
[2005] FMCA 1446
•20 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFGN v MINISTER FOR IMMIGRATION | [2005] FMCA 1446 |
| 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 a citizen of Pakistan claiming a well-founded fear of persecution by reason of homosexuality. PRACTICE & PROCEDURE – Where applicant did not attend court. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A Federal Magistrates Court Rules 2001, R. 13.03A(c) |
| Applicant: | SZFGN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3660 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 by the Applicant |
| Counsel for the Respondent: | Ms Kaur-Bains |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed pursuant to Rule 13.03A(c) due to the non-attendance by the Applicant at Court.
The applicant is to pay the first respondent's costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3660 of 2004
| SZFGN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal that was made on 27th October 2004.
The Tribunal handed down its decision on 18th November 2004. The Tribunal had asked the applicant to attend a hearing which took place on 11th June 2004 and the applicant attended that hearing.
The applicant had claimed a well-founded fear of persecution on the basis that, inter alia, he was a homosexual and he feared persecution on that basis should he return to Pakistan. He originally consulted a firm of solicitors in Sydney who filed an application for him on
16th December 2004 setting out a number of grounds that were on their face well argued and, it would appear, arguable. However, the solicitors have since filed a notice of withdrawal under Part 9 Rule 9.03 of the Rules, saying that the solicitors have ceased to act for the applicant and advising of the applicant's last notified residential address and advising that he needed an interpreter in either Pashtu or Urdu.
Regrettably, the applicant has not attended Court today. I called the applicant at 20 past 10 this morning, the application having been listed for final hearing at 10.15 a.m. There was no appearance. I note that the interpreter, who is an interpreter in the Urdu language, amongst others, had appeared promptly. I was informed by counsel for the respondent that her instructing solicitor had attempted to telephone the applicant on his last known telephone number, but found that the telephone had been disconnected.
As is the usual practice in this Court, I stood the matter down to allow time for the applicant to arrive late if he had been delayed by public transport or to have telephoned or faxed in a medical certificate if he were ill or injured. We also waited to see if the applicant had gone to the Court at Queens Square by mistake. None of those things has happened. The Court has received no word from the applicant to explain his non-appearance and, on my understanding, the solicitors for the respondent have received no word from the applicant.
I do not know why the applicant has not attended Court today, but the time is now well after 10.50 a.m. It is 10.55 a.m., and I do not propose to leave this matter in the list any longer. Ms Kaur-Bains for the respondent asks that I dismiss the matter due to the applicant's
non-appearance at Court, and I propose to do just that.
The application will be dismissed pursuant to Rule 13.03A(c) on the basis that there is no appearance by the applicant at Court.
There is also an application for costs on behalf of the respondent in the sum of $3,800.00. In my view, this is an appropriate application.
The respondent received no notification from the applicant that he was not going to attend and they were obliged to prepare the matter for hearing. They had briefed counsel and in the circumstances I am satisfied that briefing of counsel was an appropriate step to take, noting the matters that had been set out in the application for review.
In the normal course of events where an applicant does not appear for any reason and the Court dismisses the application, the Court will make an order for costs, and I propose to do that in this case. It is the practice of the Federal Magistrates Court to set costs in a lump sum wherever possible. I intend to do that. The amount of costs sought, $3,800.00 inclusive of counsel's fees, appears to me to be well within the range envisaged by the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 30 September 2005
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