SZFKJ v Minister for Immigration

[2006] FMCA 1343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1343

MIGRATION – Dismissal of application for judicial review on account of the non-appearance of the applicant.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZFKJ

First Respondent: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG36 of 2005

Judgment of: Driver FM

Hearing date: 9 August 2006

Delivered at: Sydney

Delivered on: 9 August 2006

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms T Quinn
Phillips Fox

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

4. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

THE COURT NOTES THAT:

1. There is a serious issue to be tried as to whether sufficient notice of the final Refugee Review Tribunal hearing was given to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG36 of 2005

SZFKJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I note there was no appearance when the applicant was called by name at 2.27pm.  This matter has been called three times and on each occasion there was no appearance by or on behalf of the applicant.  There is no explanation for his non-appearance.  The applicant was made aware of the need for him to attend court today because he attended directions before Registrar Kavallaris on 24 January 2005 when the matter was listed for final hearing today.  In addition, he was reminded of the need to attend court in two letters sent by the Minister’s solicitors to him at his address for service dated 4 August 2006 and 8 August 2006 (exhibits R1 and R2).

2. The Minister would have been prepared to concede jurisdictional error if the applicant had appeared today but warned the applicant in the two letters I have referred to that if the applicant failed to appear the application might be dismissed and a costs order made.  I note that the applicant has not paid the setting-down fee required to be paid for him following the directions made by Registrar Kavallaris on 24 January 2005.  In addition, it appears from the correspondence file that while a panel adviser was appointed for him there is no indication that an appointment for the provision of that advice has been kept.  This leads me to doubt whether the applicant has a continuing interest in this proceeding.

3. I will order that the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I will order that the Refugee Review Tribunal be joined as the second respondent to the application. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

4. I will further direct that the Minister cause the orders I have made today to be entered and that the Minister serve a sealed copy of those orders by ordinary pre-paid post on the applicant at his last-known address for service together with a copy of rule 16.05 of the Federal Magistrates Court Rules. I will also append to these orders a note as follows:

   The Court notes that there is a serious issue to be tried in this matter being the issue of whether sufficient notice of the final hearing scheduled by the Refugee Review Tribunal was given to the applicant.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 September 2006