SZGEU v Minister for Immigration

[2006] FMCA 1352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1352

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal to affirm delegate’s decision not to grant a protection visa – where applicant did not attend court – where counsel sought leave to withdraw.

Judiciary Act 1903 (Cth) s.39B

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: SZGEU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1124 of 2005

Judgment of: Scarlett FM

Hearing date: 5 September 2006

Date of last submission: 5 September 2006

Delivered at: Sydney

Delivered on: 5 September 2006

REPRESENTATION

Counsel for the Applicant: Mr Burwood

Counsel for the Respondent: Ms McNaughton

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Counsel for the Applicant is granted leave to withdraw.

2. The Application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to the non-attendance by the Applicant.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1124 of 2005

SZGEU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Refugee Review Tribunal signed on 10^th March and handed down on 5^th April 2005.  The Applicant has not attended Court personally today, although her Counsel has appeared. 

2. The history of this matter, so far as is relevant, is that the application was first before a Registrar of this Court on 18^th May 2005. On that occasion it was adjourned until 27^th March 2006 when it was not possible to be heard due to other Court commitments. It was re-listed for hearing on 4^th May 2006 and Mr Burwood of Counsel appeared for the Applicant. He sought, and was successful in obtaining, an adjournment, albeit with costs, in order to permit him to prepare and file a further amended application, having been briefed very late.  I also made directions about filing of submissions.  

3. No amended application or submissions were filed and the matter came before the Court today. The Applicant’s Counsel appeared but he informed the Court that he wished to seek leave to withdraw. He had obtained the appropriate Court Book and other materials and had perused those documents and on two separate occasions he had tried to contact his client seeking her instructions. He told the Court, and I believe it to be the truth, that he heard nothing from her whatsoever and he was therefore bereft of instructions. 

4. In the circumstances I granted him leave to withdraw. It was of course proper of Counsel to attend Court to explain the predicament that he was in and seek that leave. 

5. The fact is that the Applicant has not attended Court today. There is no doubt that she was well aware of the time, date and place of the hearing and she has, for reasons that are not explained, chosen not to attend and not to contact her legal adviser. In the circumstances, I propose to dismiss the application under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules due to the non-appearance of the Applicant at the final hearing.

6. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,500.00.  That cost is inclusive of Counsel’s fees.  To my mind, it is appropriate to make an order for costs. The Minister’s legal advisers were here this morning on time and ready to proceed with the matter on a defended basis. They have, to the best of my knowledge, prepared the case and indeed I have seen on an earlier occasion a written outline of submissions. Counsel has been briefed, Counsel is here. This is an appropriate matter for me to make an order for costs against the Applicant on behalf of the First Respondent Minister.

7. The amount sought is $4,500.00. That is inclusive of Counsel’s fees. 

   
   

   It is, in my view, an appropriate amount.  I am mindful of the fact that the application was first filed in this Court on 2^nd May 2005 and in all the circumstances the sum sought is appropriate and indeed even modest.  The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.  I require a transcript of my reasons. 

   
   

   The application will be removed from the list of cases awaiting finalisation.  

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  12 September 2006