SZGSO v Minister for Immigration
[2006] FMCA 699
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 699 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant failed to appear – application dismissed pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001. |
| Migration Act 1958 (Cth), ss.477(1A) |
| Applicant: | SZGSO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1809 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 March 2006 |
| Date of Last Submission: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Ms C. Gray, Sparke Helmore |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $2750.
Direct the First Respondent to prepare these orders for settling, and once settled, to serve upon the applicant a copy of the orders together with a copy of r. 16.05 of the Federal Magistrate Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1809 of 2005
| SZGSO |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to Rule 13.03A(c) of the Federal Magistrate Court Rules 2001 that the applicant's application filed on 11 July 2005 in respect of a Tribunal decision dated 30 August 2004 be dismissed on the basis of the non-appearance of the applicant.
I note that the applicant failed to appear at the Tribunal hearing held on 26 August 2004. The Tribunal noted the following:
“On 30 July 2004, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 August 2004. On 10 August 2004, the applicant advised the Tribunal in writing that she wanted to give oral evidence. However, the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”
The Tribunal then proceeded to consider the applicant's claims but ultimately found her claims:
“…so vague and lacking in detail in several important respects that I am unable to establish the relevant facts.”
For those reasons the Tribunal concluded that it was not satisfied that the applicant had suffered harm amounting to persecution in the past or is likely to do so in the future, or that the harassment claimed to have occurred in the past and claimed to fear in the future amounted to persecution for a convention reason. I also note that the first respondent filed a notice of objection to competency on 21 July 2005 in that the applicant's application for review in this Court was filed in excess of the 28 day period provided for under s.477(1A) of the Migration Act 1958 (Cth) (“the Act”).
Orders were made on 4 August 2005 by consent, inter alia, setting the matter down for hearing on 30 March at 2.15pm. The orders were signed by the applicant's then solicitor, Mr Edmond Teng, who appeared at that directions hearing on the applicant's behalf. On 12 September 2005, Mr Teng filed a notice of ceasing to act, together with an affidavit, sworn 9 September 2005, stating that a copy of the short minutes of order had been sent to the applicant and advising that the applicant's address for service is 518/422 Pitt Street, Sydney.
A copy of the letter sent to the applicant to that effect was annexed to Mr Teng's affidavit.
On 16 December 2005, a letter was sent to both parties from my chambers re-listing the matter for today, being 31 March 2006, at 10.15am. It came to my attention at the end of last week that the letter had been sent to the incorrect address. An attempt was made by my chambers to courier a letter to the applicant at the address identified by Mr Teng for service, however, the courier lost the letter.
In those circumstances, my chambers contacted the solicitors for the first respondent to let them know that it may be that the matter would be changed back to the original time, being yesterday at 10 am, and that, if the applicant appeared in Court at that time on that day, the applicant would be directed to appear this morning.
However, there was no appearance yesterday for the applicant and there is no appearance today by the applicant, despite having been called outside on two occasions.
The first respondent tendered a letter dated 23 March 2006, which I marked exhibit 1R, addressed to the applicant at her address for service as notified by Mr Teng notifying the applicant of today's hearing.
In the circumstances, I am satisfied that the applicant was aware of today's hearing and for whatever reason has chosen not to attend.
I note that if indeed the applicant had understood that yesterday was to be the hearing of the matter, there was no appearance by her. I note further that an interpreter was ordered by the Court to attend yesterday morning in case the applicant did appear. An interpreter is also present this morning for the assistance of the applicant.
Moreover, I note that the application does not identify a reviewable ground of error and would appear at this stage to have no reasonable prospects of success.
Accordingly, I am satisfied that it is appropriate to make the orders sought by the respondent.
ORDERS DELIVERED
The first respondent seeks costs fixed in an amount of $2750 in respect of this matter. I note that the amount sought is less than that provided by the schedule of costs attached to the Federal Magistrate Court Rules 2001. In the circumstances I am satisfied such costs sought are reasonable.
ORDERS DELIVERED
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A D’Addona
Date: 12 May 2006
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