SZGRT v Minister for Immigration

[2006] FMCA 1073

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRT & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1073

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – failure of applicant to appear – withdrawal of direct access barrister – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001.

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

First Applicant: SZGRT

Second Applicant: SZGRU

Third Applicant: SZGRV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1787 of 2005

Judgment of: Emmett FM

Hearing date: 18 July 2006

Date of last submission: 18 July 2006

Delivered at: Sydney

Delivered on: 18 July 2006

REPRESENTATION

No appearance by the Applicants

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Mr A. Cox, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1787 of 2005

SZGRT

First Applicant

SZGRU

Second Applicant

SZGRV

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now 10.58am and the applicants have been called on at least three occasions this morning from between 10.15am and 10.45am and there has been no appearance by any of the applicants. The first named applicant is the primary applicant, being the husband of the second named applicant and the father of the third named applicant.

2. The first respondent seeks an interlocutory order that the proceeding before this Court be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 that provides:

   “If a party to a proceeding is absent from a hearing… the Court may…

   (c) if the party absent is an applicant – dismiss the application.’

3. The first named applicant filed an application seeking judicial review on 8 July 2005 in respect of a decision of the Refugee Review Tribunal dated 20 May 2005[FMCoA1], in respect of which the first named applicant was notified shortly after 14 June 2005. 

4. Mr Zipser appeared for the first named applicant at a directions hearing on 2 August 2005 at which directions were given for the filing and service of an amended application and any evidence in support of such application upon which the first named applicant intended to proceed before this Court. 

5. The first named applicant was also directed to file written submissions 14 days prior to today's hearing.  No other document has been filed or served by the first named applicant or by anyone on behalf of the first named applicant by this Court other than the application filed on 8 July 2005. 

6. The first respondent tendered three documents this morning. The first document was an email from Mr Zipser to Mr Cox, solicitor for the first respondent, and attaching a copy of a letter sent by Mr Zipser to the applicant.  The email from Mr Zipser notified the first respondent that Mr Zipser, who had accepted a direct access brief, was withdrawing from the matter.  The text of the letter, dated 24 March 2006, makes clear the reason for doing so and is set out as follows:

   “Dear [the Applicant]

   SZGRT v MIMA

   I refer to the above matter.

   I tried to phone you today on a phone number you gave me in June 2005 [Applicant’s phone number] but the phone number was disconnected. Please phone me to confirm that you still want me to appear at the final hearing in your matter.

   If you do not contact me by 13 April 2006 I will assume that you no longer want me to appear at the final hearing in your matter and I will inform the Minister’s solicitor that I no longer have instructions to appear for you at the final hearing.

   Yours sincerely

   Ben Zipser.”

7. That is the only communication that the first respondent or her advisers have received from the first named applicant or anyone on his behalf.

8. The first respondent also relies on a copy of a business record of Avant Couriers entitled, "Booking Details", marked ‘Exhibit 1R’, which contains information that a letter was sent to the applicant on 14 July 2006 and was left in the letterbox.  Exhibit 1R also contains the handwritten note: 

   “Occupants of Unit 1 claim [the Applicant] did not live there.”

9. I note that the address on the document is the same as the address identified by the first named applicant on the application filed in this Court on 8 July 2005. 

10. At the directions hearing on 2 August 2005, the matter was set down for hearing on 3 April 2006.  On 9 March 2006, my Chambers wrote to the first named applicant at the address identified by him on his application notifying him that the hearing was relisted for today at 10.00am.  There has been no communication received by my Chambers or the first respondent from the first named applicant. In the circumstances, I am satisfied that the first named applicant, for whatever reason, was aware of the proceeding and has chosen not to appear. 

11. Accordingly, the order sought by the first respondent is appropriate and I order that the application be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.

ORDERS DELIVERED

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

Deputy Associate:  S. Tsang

Date:  28 July 2006

[FMCoA1]Sylvia – I added this in as you usually put the date of the RRT decision in.