SZFIL v Minister for Immigration
[2005] FMCA 821
•2 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFIL v MINISTER FOR IMMIGRATION | [2005] FMCA 821 |
| MIGRATION – Refugee Review Tribunal – application for review of decision affirming the decision of a delegate of the Minister not to grant a protection visa to the Applicant – non-compliance with directions – matter placed in Non-compliance List – where the Applicant does not appear – application dismissed under R. 13.03A. |
Federal Magistrates Court Rules 2001, R. 13.03A
| Applicant: | SZFIL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3767 of 2004 |
| Delivered on: | 2 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitor for the Respondent: | Ms Bautista |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 for default of appearance by the Applicant.
The Applicant is to pay the Respondent’s costs of this application fixed in the sum of $1,500.00.
I vacate the hearing date of 5 October 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3767 of 2004
| SZFIL |
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.
The application was filed on 23 December 2004. The application came before the Court at a directions hearing on 11 January 2005. At that stage the Applicant was ordered to file and serve an amended application, giving complete particulars of each ground of review relied upon, by 15 March 2005.
The Applicant complied with that direction in part, in that he filed an amended application but apparently neglected to serve it on the solicitors for the Respondent. As such, the Respondent's solicitors, being unaware of this amended application having been filed, listed the matter in a non compliance list. The matter was listed before me at 10:15 am on 2 June, which is today. The Applicant did not attend at 10:15, nor did he attend when he was further called at 10:45.
The Applicant did file a notice of change of address for service on 11 January 2005.
I have received into evidence this morning an affidavit of Jennifer Bautista, a solicitor appearing for the Respondent Minister. She annexes to that affidavit a copy of a letter forwarded to the applicant and dated 17 May 2005. The letter is addressed to the Applicant at the address that he gave on his notice of change of address for service.
The letter sets out the Deponent's belief that the Applicant had not complied with the order to file an amended application and advised him that his matter had been put in a non compliance list, so that the Respondent could apply to have his matter summarily dismissed. She also advised the Applicant that the Respondent would seek an order that he pay the Minister's legal costs.
The letter advised the Applicant that this application would be heard before me at 10:15 am on 2 June 2005 at John Madison Tower, 88 Goulburn Street, Sydney. The letter goes on to say:
You are required to attend on that occasion. If you do not attend on this occasion the Respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister's legal costs.
The letter goes on to say that if the Applicant has any queries he should contact the solicitors, and the lawyer concerned gives her contact details by way of a telephone number and an email address.
The Applicant, as I said, has just not attended Court. In my view, the letter forwarded to the Applicant makes it quite clear that he should have attended Court today. The letter is clear and unambiguous.
I allowed sufficient time, in my view, for the Applicant to appear, bearing in mind the fact that sometimes Applicants arrive a little late, as was the case with another matter that I held in the list this morning. The Applicant in that case was unavoidably delayed for some reason, and having held the matter in the list, I was able to deal with the matter when he did arrive.
In my view, however, once half an hour has elapsed with no indication from the Applicant either by contacting the Respondent's solicitors, or the Court, that he has been delayed, or hindered, or prevented from attending Court by illness, injury, or some other emergency, it is reasonable to assume that the applicant is not going to attend Court.
I have now released the interpreter and I consider it is now appropriate to entertain an application for the matter to be dismissed for default of appearance by the Applicant. It is quite clear that the Applicant has just not attended.
Accordingly, I propose to dismiss the application this morning. I am also satisfied that the Applicant was well and truly advised that an order for costs would be sought and the contents of the letter to the applicant make that quite clear. I will make an order that the Applicant pay the Respondent's costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 15 June 2005
0
0
0