SZGZI v Minister for Immigration

[2007] FMCA 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 253

MIGRATION – Review of Decision by Refugee Review Tribunal – practice and procedure – application dismissed pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001.

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

Applicant: SZGZI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2212 of 2005

Judgment of: Emmett FM

Hearing date: 15 February 2007

Date of last submission: 15 February 2007

Delivered at: Sydney

Delivered on: 15 February 2007

REPRESENTATION

No appearance by the Applicant

Solicitor for the Respondent: Ms E. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2212 of 2005

SZGZI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an Order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 that the proceeding, commenced by way of application filed on 17 August 2005 seeking judicial review of a decision of the Refugee Review Tribunal in respect of which the applicant was notified on 9 August 2005, be dismissed by reason of the non-appearance of the applicant at today’s hearing. 

2. I note that the applicant appeared at a directions hearing on 26 October 2005, at which time the matter was set down for hearing today at 10.15am.  On 28 July 2006, my Chambers wrote to the applicant informing the applicant that the hearing today would be at 2.15pm instead of at 10.15am. 

3. On 24 January 2007, the applicant wrote to my Chambers stating that the applicant had moved to Melbourne and appointed a solicitor for the hearing of her case and requested a transfer of her proceeding to Melbourne. The letter was marked Exhibit 1R. The letter attached a statutory declaration made by the applicant and was in similar terms to the letter.

4. A written response was sent from my Associate to the applicant on 30 January 2007:

   “SZGZI v Minister fro Immigration and Multicultural Affairs SYG2212 of 2005

   I refer to your letter dated 24 January 2007. As you are aware your matter was set down for hearing on 15 February 2007 at John Maddison Tower, Sydney. On 28 July 2006, you were notified that the hearing time changed from 10.15am to 2.15pm although the hearing date remained unchanged.

   Unless your application for transfer is made with the consent of the first respondent then your hearing will proceed on 15 February 2007 at 2.15pm in Court 7C, John Maddison Tower, 88 Goulburn Street, Sydney.

   If there is no appearance by you or on your behalf on 15 February 2007 at 2.15pm and, if there has been no agreement between the parties and order of the Court either transferring the matter to Melbourne or adjourning the hearing, the matter may proceed in your absence and your proceeding may be dismissed by reason of your non-appearance. I enclose a copy of Rule 13.03A of the Federal Magistrates Court Rules for your information.”

5. That letter is marked Exhibit 2R.  Exhibit 2R made it clear to the applicant that the applicant would need to obtain the consent of the first respondent before any Order for transfer would be made and that, unless the application for transfer was made with consent, then the matter would proceed today at 2.15pm.   

6. In a copy of an email from the solicitor of the first respondent to my Associate, marked Exhibit 3R, the first respondent opposed the applicant’s application for transfer of the matter to Melbourne.  RECORDED:  NOT TRANSCRIBED

7. Ms Palmer, being a solicitor in the employ of Clayton Utz in Sydney and the person with the carriage of this matter, gave sworn evidence to this Court that she has not received any communication from the applicant seeking the consent of the first respondent to transfer the matter to Melbourne

8. The Exhibit 2R makes clear to the applicant that, if there is no appearance by the applicant at the hearing this afternoon and there has been no agreement between the parties and no Order of the Court transferring the matter or adjourning the hearing, then the matter may proceed in the absence of the applicant and the proceeding dismissed. The letter also enclosed for the applicant's information, a copy of r.13.03A(c) of the Federal Magistrates Court Rules 2001.

9. There is no evidence before me of any agreement between the parties to transfer the matter to Melbourne and indeed Ms Palmer has given positive evidence that there is no agreement.  Moreover, there is no Order of the Court transferring the matter to Melbourne or adjourning the hearing.  There has been no other communication received by my Chambers from or on behalf of the applicant.  There has been no Notice of Appearance filed on behalf of the applicant. 

10. In the circumstances, I am satisfied that for whatever reason the applicant was aware of this afternoon’s hearing and has chosen not to appear. In those circumstances, it is appropriate that the Order sought by the first respondent be made. 

11. The first respondent seeks costs fixed in an amount of $4,000.  I note that the applicable costs schedule is the old schedule of the Federal Magistrates Court Rules 2001.  I note that such sum is less than the amount provided for under those Rules.  Accordingly, I am satisfied the amount sought is reasonable and I Order that the applicant pay the costs of the first respondent fixed in an amount of $4,000. 

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

Deputy Associate: E. Maconachie

Date: 8 March 2007