SZGUG v Minister for Immigration

[2006] FMCA 870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 870

MIGRATION – Review of decision by Refugee Review Tribunal – applicant failed to appear – application has no reasonable prospects of success –application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, rr.13.03A(c)(3); 16.05

Applicant: SZGUG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1898 of 2005

Judgment of: Emmett FM

Hearing date: 30 May 2006

Date of last submission: 30 May 2006

Delivered at: Sydney

Delivered on: 30 May 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms C. Gray, Sparke Helmore

ORDERS

1. That pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 the applicant’s application before this Court is dismissed.

2. That the Applicant pay the First Respondent’s costs in an amount of $3000.

3. Direct the First Respondent to prepare orders for sealing by the Registrar and a copy of these orders sent forthwith to the Applicant together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1898 of 2005

SZGUG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down for hearing today at 2.15pm. It is now 2.38pm and the applicant has not appeared.  The matter has been called outside on two occasions. 

2. On 19 July 2005, the applicant filed an application for review of a decision of the Refugee Review Tribunal made 26 May 2005 and in respect of which the applicant was notified on 30 June 2005.

3. On 11 August 2005, the applicant appeared at a directions hearing and signed orders by consent that the applicant file and serve any further material, including an amended application, and setting the matter down for hearing today at 2.15. An amended application was filed by the applicant on 6 October 2005. However, thereafter, there has been no other document filed in this Court by the applicant. 

4. The first respondent relies on a letter dated 11 May 2006 from the respondent’s lawyers, Sparke Helmore, addressed to the applicant at the applicant’s address for service noted on the amended application filed in this Court on 6 October 2005.  I note that that address is the same as that on the applicant’s application. That letter is marked exhibit 1R. The letter enclosed, by way of service to the applicant, a copy of the first respondent’s submissions.

5. The first respondent also notified the applicant in that letter that, if the applicant did not attend the hearing, the first respondent would seek orders that the matter be dismissed and that the applicant pay the first respondent’s costs of the proceeding.

6. In the circumstances, I am satisfied that the applicant was aware of today’s hearing.  There has been no communication received from this Court, nor the first respondent, from the applicant as to any reason why the applicant has not appeared.  In the circumstances I am satisfied that the applicant has, for whatever reason, chosen not to appear on this day and that it is appropriate that the matter proceed in the absence of the applicant.

7. The first respondent seeks an order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 that the applicant’s application in this Court be dismissed on the basis of the applicant’s failure to appear at the hearing today. 

8. I note that the amended application of the applicant filed on 6 October 2005 does not give particulars of any of the grounds sought to be relied upon and in the circumstances discloses no reviewable error.

9. I also note that the applicant failed to appear at the hearing before the Tribunal despite having been invited by the Tribunal to attend a hearing on 25 May 2005. I note that the invitation to attend was dated 27 April 2005 and sent to the applicant’s mailing address as identified in the applicant’s application for review lodged on 21 March 2005.

10. In the circumstances, I am satisfied that the order sought by the first respondent ought be made.

ORDERS DELIVERED

1. The first respondent seeks costs fixed in an amount of $3000.  I note that the amount sought is less than that provided for in the schedule annexed to the Federal Magistrates Court Rules 2001 providing in respect of costs.  Accordingly, I am satisfied that the amount sought is reasonable. 

ORDERS DELIVERED

1. I direct the respondent to prepare orders for sealing by the Registrar and that a copy of those orders be sent to the applicant forthwith, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S.Kwong

Date:  16 June 2006