SZFIX and Minister For Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIX & MINISTER FOR IMMIGRATION

[2005] FMCA 1447

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 claiming a well-founded fear of persecution.

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)

SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1260

Applicant:

SZFIX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3785 of 2004

Judgment of:

Scarlett FM

Hearing date:

22 September 2005

Date of Last Submission:

22 September 2005

Delivered at:

Sydney

Delivered on:

22 September 2005

REPRESENTATION

The Applicant:

No appearance by the Applicant

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed pursuant to Rule 13.03A(c) for

non-attendance by the Applicant at the hearing.
That the applicant is to pay the respondents costs fixed in the sum of $4,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3785 of 2004

SZFIX

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 30^th November 2004 and handed down on

22^nd December 2004. That decision affirmed a decision of a delegate of the Minister made on 26^th March of that year refusing an application for a protection visa.
The applicant is a citizen of India who entered Australia on

10^th October 2003. She submitted an application for a protection visa that same day. She claimed that she feared persecution on return to India on the basis that she had come from a low caste family and had supported a social committee formed by her husband upholding the rights of low caste Hindus.
On 26^th March 2004 a delegate of the Minister refused an application for a protection visa and on 20^th May 2004 the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant attended hearings on 24^th June and 30^th November 2004. The Tribunal affirmed a decision of the delegate of the Minister to refuse the granting of a protection visa.
The applicant commenced proceedings by way of an application that was filed on 30^th December 2004. She filed an amended application on 4^th April 2005. The application was listed for hearing on a final basis at 2.15 p.m. today and the applicant did not attend when the matter was called at twenty past two and at twelve minutes to three. I am informed that the solicitors for the respondent Minister have received no indication from the applicant as to why she has not attended today and the Court has not received any information, at least insofar as I am aware, indicating that the applicant has somehow been hindered or delayed by illness or injury or other cause.
It would appear to me that sufficient time has elapsed so that if the applicant had mistakenly gone to the Court in Queens Square rather than to this building, she would have been able to get a message to the Court and in any event get herself down here in time.
I am mindful of the decision of the Federal Court on an appeal from this Court in the matter of SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1260 and my view the applicant has now been given adequate time to either attend or get a message as to why she is unable to attend.
There is an application for costs assessed on a party and party basis in the sum of $4,300.00. That is inclusive of counsel fees, I note that counsel was briefed and as the respondent received no indication that the applicant was not going to attend, it was necessary for counsel to be here today and it was necessary for the matter to be prepared ready for a defended hearing. In my view the sum of $4,300.00 in the circumstances is well within the scope of the costs envisaged 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:Sharon Polley

Date: 30 September 2005

The Federal Circuit and Family Court of Australia heard a matter between SZFIX, an applicant, and the Minister for Immigration, the respondent. The case involved an application by SZFIX seeking certain relief in relation to their immigration status. The application was dismissed due to the applicant's non-attendance at the hearing, which occurred without their presence or representation. The court was required to determine whether the application could proceed in the absence of the applicant and, if so, what relief, if any, should be granted. Additionally, the court needed to decide on the costs associated with the application.

The court considered the provisions of Rule 13.03A(c) which allowed for the dismissal of an application when the applicant fails to attend the hearing. The court noted that the applicant had been duly notified of the hearing date and had not provided any justification for their absence. The court emphasised the importance of personal attendance in legal proceedings and the consequences of failing to appear. Given the applicant's absence and lack of communication, the court concluded that the application could not proceed, and thus, it was dismissed. The court also determined that the respondent was entitled to costs under the provisions of the legislation, which were fixed at $4,300.00.

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Legal Principle Established