SZFMA v Minister for Immigration

[2006] FMCA 1810

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1810

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application – non appearance by the applicant.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZFMA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG97 of 2005

Judgment of: Driver FM

Hearing date: 11 October 2006

Delivered at: Sydney

Delivered on: 11 October 2006

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms E Palmer
Clayton Utz

INTERLOCUTORY ORDERS

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

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, including any reserved costs, fixed in the sum of $2,700.

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).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG97 of 2005

SZFMA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 December 2004.  The judicial review application was filed on 13 January 2005 and Registrar Kavallaris gave directions on it on 31 January 2005.  The Registrar made a number of orders by consent of both parties including an order listing the application for a final hearing today at 10.15am before me at Queens Square.  The applicant, being present and having signed and consented to that order, should have been in no doubt as to the need to attend court today.  If there had been any doubt it should have been removed by exhibit R1, which is a letter to the applicant from the Minister’s lawyers dated 3 October 2006 reminding him of the hearing today before me and warning him that a failure to attend would result in an application to have his application dismissed.  I note that the letter was sent to an address advised by the applicant in a change of address form filed on 13 June 2006.  I am told that the letter has not been returned.

2. When the matter was called this morning there was no appearance by or on behalf of the applicant.  The matter has been called three times.  On the third occasion the applicant was called by his real name. 

   
   

   On each occasion there was no answer to the call.  I adjourned temporarily so that an attempt could be made to contact the applicant by telephone on a mobile number he had provided on an amended application filed on 9 May 2005.  That attempt was unsuccessful.  The telephone rang but no one answered it, despite several attempts.

3. There is no explanation for the applicant’s non-attendance today. 

   
   

   I have decided that the appropriate course is to accede to the Minister’s application for dismissal on account of the applicant’s non-attendance. 

4. 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”).

5. Costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $2,700.  I accept that those costs have been properly and reasonably incurred on behalf of the Minister when assessed on a party-party basis. 

6. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $2,700. 

7. I will further direct that the Refugee Review Tribunal be joined as the second respondent to the application.

8. I will direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those 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.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  14 December 2006