SZFPH v Minister for Immigration

[2006] FMCA 1155

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFPH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1155

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – failure of applicant to appear at hearing before this Court – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, rr.13.03A(c); 16.05; sch.1
Migration Act 1958 (Cth) , ss.425, 425A

Applicant: SZFPH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG224 of 2005

Judgment of: Emmett FM

Hearing date: 7 August 2006

Date of last submission: 7 August 2006

Delivered at: Sydney

Delivered on: 7 August 2006

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Mr J. Bird, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG224 of 2005

SZFPH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now 2.29pm and the applicant has been called three times between 2.15pm and this time. There has been no communication received by the Court nor the first respondent or her legal advisors from the applicant. 

2. I note that the applicant attended in person, a directions hearing on
   10 February 2005, at which the matter was set down by consent for hearing today at 2.15pm.  

3. I do note that the applicant filed a notice of change of address for service on 15 February 2005, which contained a mobile telephone number.  My associate has telephoned that telephone number in Court this afternoon and received a recorded message.  In the circumstances, I am satisfied that the applicant was aware of this afternoon's hearing and for whatever reason has chosen not to attend.  Accordingly it is appropriate to proceed in the absence of the applicant.

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks an order dismissing the applicant's application filed in this Court on 25 January 2005, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 on the basis of the absence of the applicant from this afternoon's hearing. 

2. As I have already said, I am satisfied that the applicant was aware of this afternoon's hearing and has, for whatever reason, chosen not to attend.

3. The applicant's application filed on 25 January 2005 does not disclose any ground with any reasonable prospects of success.

4. I note that Counsel for the first respondent in written submissions has addressed comprehensively the Refugee Review Tribunal's (“the Tribunal”) decision.  However, it is not necessary at this stage to consider further the Tribunal’s decision, beyond noting that the applicant did not attend the Tribunal hearing.

5. In the circumstances I am satisfied that it is appropriate that the order sought by the first respondent be made.

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks costs fixed in an amount of $5000 pursuant to schedule 1, part 2 Rrule 1(c) of the Federal Magistrates Court Rules 2001. That rule provides that in respect of migration proceedings and for proceedings that are concluded at a final hearing, the amount provided for is $5000. Due to the failure of the applicant to appear, the order that I make dismissing the application can only be interlocutory in that the applicant is entitled, pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 to make an application for reinstatement of the matter for hearing. 

2. However, it cannot be that an applicant can avoid the consequences of the costs fixed by the schedule for a final hearing by failing to appear and therefore preserving a right for a reinstatement application.  Subject to any reinstatement application, the proceeding has been concluded today before this Court.  Accordingly, the applicant should pay the first respondent's costs in the amount of $5000.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  24 29 August 2006