SZFJR v Minister for Immigration

[2005] FMCA 766

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJR v MINISTER FOR IMMIGRATION [2005] FMCA 766

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend the RRT hearing – where applicant did not attend court.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where respondent sought summary dismissal of the application on the basis that the application does not disclose a reasonable cause of action.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrate Court Rules 2001 r.13.10

Applicant: SZFJR

Respondent: MINISTER FOR IMMIGRATION & MULITCULTURAL & INDIGENOUS AFFAIRS

File Number: SYG12 of 2005

Judgment of: Scarlett FM

Hearing date: 30 May 2005

Date of Last Submission: 30 May 2005

Delivered at: Sydney

Delivered on: 30 May 2005

REPRESENTATION

Solicitors for the Applicant: No Appearance

Counsel for the Respondent: Mr Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

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

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $4,050.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG12 of 2005

SZFJR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 15^th November 2004 and handed down on 10^th December 2004. 

2. I note that the applicant did not attend the hearing of the Refugee Review Tribunal. 

3. The applicant did, however, lodge an application for a review of the decision of the Refugee Review Tribunal.  That application was lodged on 5^th January 2005.  The applicant lodged an amended application on 12^th April 2005. 

4. On 12^th May 2005 an application for summary dismissal of the substantive application came before the Court.  I note that the applicant appeared on that occasion but indicated that she had not had the advantage of assistance from the Refugee Review Tribunal Legal Advice Scheme.  On that basis I adjourned the proceedings until today for final hearing and vacated the hearing date scheduled to commence on 14^th December 2005. 

5. I ordered a Mandarin interpreter for the purpose of today's proceedings and noted that the applicant would require a Mandarin interpreter for assistance with the Refugee Review Tribunal Legal Advice Scheme. 

6. The applicant has just not attended.  The matter was called at 10.15 and was then called again.  It is now 10.47 am by the Court clock and there is still no appearance of the applicant.

7. Mr Bird, for the respondent, informs me that his office has received no information or notification by the applicant or anyone on her behalf to indicate that she is delayed or ill or indisposed and when I stood the matter down he tells me that he telephoned his assistant to check that no late message had been received and none had.

8. I am informed by my associate that no notification, either written or telephoned, has been received by or on behalf of the applicant indicating any delay or any reason for non-appearance. 

9. In the circumstances, I consider that it is appropriate to apply the provisions of Rule 13.03A(c) and dismiss the matter for

   
   

   non-appearance.

10. The respondent's solicitors seek an order for costs and indeed the matter had to be prepared on the basis of a full hearing.  I did order that the applicant was to pay the respondent's costs of the last appearance of 12^th May. In my view, this is an appropriate matter for an order for costs and in my view the sum sought, a lump sum of $4,050.00, is an appropriate figure. It is well within the scale provided by the Federal Magistrates Court Rules and it does take into account the degree of preparation required and the time involved in attending Court.

11. It is for these reasons that I will dismiss the application with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  6 June 2005