SZFHM v Minister for Immigration
[2005] FMCA 1801
•16 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHM v MINISTER FOR IMMIGRATION | [2005] FMCA 1801 |
| 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 Egypt. PRACTICE & PROCEDURE – Where applicant did not attend court. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | SZFHM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| File Number: | SYG 3708 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 November 2005 |
| Date of Last Submission: | 16 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Mr Bird Phillips Fox |
ORDERS
The application is dismissed pursuant to Rule 13.03A due to the
non-attendance of the Applicant at Court.
The Applicant is to pay the first Respondent’s costs fixed in the sum of $3,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3708 of 2004
| SZFHM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 26th October 2004 and handed down on 18th November 2004. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
The background to this matter is that the applicant, who is a citizen of Egypt, arrived in Australia unauthorised as a deserter from a ship on 28th May 2004. He lodged an application for a protection class XA visa on 7th June 2004, and that application was refused on 17th June 2004. On 21st July 2004 the applicant applied for review of that decision by the Refugee Review Tribunal.
The applicant attended a hearing of the Tribunal on 27th September 2004 with the assistance of an Arabic speaking interpreter. The Tribunal considered his application, but affirmed the decision of the delegate of the Minister.
The applicant filed an application at this Court on 21st December 2004, accompanied by an affidavit by his solicitor, Mr Churchill, to which was annexed a copy of the decision of the Refugee Review Tribunal.
I express some surprise that the documents were accepted across the counter in the form that they were as they appear to have been handwritten by the applicant’s solicitor, and could best be described as marginally legible. It is my understanding of the rules of this Court that documents must be either typed or, if they are written by hand, must be printed. If this is the applicant’s solicitor’s printing I would hate to see his handwriting.
The applicant was listed for hearing today by a Registrar of this Court. That listing was made on the first court date, which was 14th January 2005. The applicant I note appears to have left the country. I refer to an affidavit of Kate McNamara, solicitor, affirmed on 15th November 2005 in which she sets out information that she has received from an officer of the Department of Immigration and Multicultural and Indigenous Affairs to the effect that the applicant had voluntarily left Australia on 16th July this year.
Ms McNamara deposes that on 9th November 2005 she contacted the applicant’s solicitor, Mr Churchill, and obtained his confirmation that the applicant had left the country and does not intend to continue the proceedings.
Over the following few days Ms McNamara deposes that she had several other contacts with Mr Churchill requesting that a notice of discontinuance be filed, and in paragraph 7 of the affidavit Ms McNamara described how she contacted Mr Churchill again on 15th November with a further request for a notice of discontinuance:
to which Martin Churchill responded by ceasing the discussion by hanging up the phone.
In my view, there is no point to holding the proceedings in the list on the off chance that the applicant might miraculously appear, as it is clear from the documentation attached to Ms McNamara’s affidavit that the applicant is indeed recorded as having departed Australia on 16th July this year.
I propose to dismiss the application for the non-attendance of the applicant pursuant to the provisions of r. 13.03A and in my view the application should be dismissed with costs.
It is regrettable, if it is in fact the case that the applicant’s solicitor was aware that his client had left the country and did not intend to continue the proceedings, that he did not seek to inform the Court of this fact and in my view the applicant’s solicitor should either have filed a notice of ceasing to act, or should have attended court personally.
I do not propose to take that matter any further, but I make it clear that this Court does impose certain obligations on practitioners, most of whom I am happy to say manage to comply with those obligations without any difficulties.
The application will be dismissed. The applicant is to pay the respondent Minister’s costs of these proceedings which I assess on a party/party basis in the sum of $3,300.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 November 2005
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