SZHCQ v Minister for Immigration

[2006] FMCA 802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 802

MIGRATION – Failure of applicant to appear at hearing – application dismissed with costs.

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

Applicant: SZHCQ

First Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2560 of 2005

Judgment of: Emmett FM

Hearing date: 24 March 2006

Date of last submission: 24 March 2006

Delivered at: Sydney

Delivered on: 24 March 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms E. Warner-Knight, Australian Government Solicitor

ORDERS

1. Accordingly pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 the applicant's applications before this Court are dismissed.

2. I order that the applicant pay the first respondent's costs in an amount of $1000.

3. I direct the first respondent to serve upon the applicant a copy of these orders together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2560 of 2005

SZHCQ

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 27 February 2006, the applicant sought an order that the order made by Registrar McIllhatton of the Federal Magistrates Court on 10 February 2006 dismissing his applications before this Court filed on 13 September 2005 and 6 February 2006, be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules. That rule is in the following terms:

   Rule 13.03A: “If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following: (c) if the party absent is an applicant – dismiss the application.”

   It plainly allows an order of the type to be made in these circumstances.

2. The application filed by the applicant on 27 February 2006, which is before the Court this morning, was supported by an affidavit sworn by the applicant on 27 February 2006 and filed on that date.  It is in the following terms:

   “1.  I am the applicant in this matter.

   2.  I did not attend the call over at 3.15pm 10 February 2006 in the Federal Magistrates Court because I did not informed (sic) by the Court or the Respondent the call over date had been changed.

   3.  The Court informed me that the call over date was 17 February 2006.  I went to the Court that day, I did find my matter was listed.

   4.  I received a letter from respondent’s solicitor on about 19 February 2006. The letter advised me that the Court dismissed the matter.

   5.  I did not receive the Green Book yet.”

3. It is now 11 am.  The matter was listed for hearing today pursuant to a letter dated 9 March 2006 addressed to the applicant and the Australian Government Solicitor.  The letter to the applicant is addressed to the address identified in the applicant's notice of change of address for service filed 13 October 2005.

4. The applicant has been called at least four times between 10.20 am and 11 am, the last of those occasions being now.

5. I do notice that the address of the applicant on his amended application that was filed subsequent to the notice of change of address for service has an address with the same unit and street number and the same suburb, but the spelling of the avenue as G-l-e-z-a-d-a-l-e, rather than G-l-a-n-d-a-l-e, which is on the notice of change of address for notice.  The original application has the address G-l-e-z-a-d-a-l-e crossed out and G-l-e-n-d-a-l-e placed there.  That appears to have been a handwritten correction.  It is not clear to me when or how that came to be marked.

6. However I accept that searches by my associates this morning on the internet reveal that there is no such road in Padstow as G-l-e-z-a-d-a-l-e, although there is a G-l-e-n-d-a-l-e Avenue.  Accordingly, I am satisfied that the applicant's address for service is that identified in the notice of change of address for service being the Glendale Avenue address.

7. On 9 March 2006, the applicant was notified of today’s hearing by letter addressed to the applicant at the Glendale Avenue address.  That being so I am satisfied that the applicant, for whatever reason, has chosen not to appear this morning.

8. I note that the applicant's application for review of the Tribunal arises out of a failure by the applicant to appear before the Tribunal on the date and time specified for the hearing. 

9. In the circumstances I am satisfied that it is appropriate to make the orders sought by the first respondent.

10. The first respondent seeks costs of meeting the applicant's motion and the appearance today fixed in the sum of $1000. 

11. I note that the Federal Magistrates Court Rules 2001 in sch. 1 provides for a sum in excess of the amount sought, and accordingly I am satisfied that the amount sought is reasonable in the circumstances. 

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

Deputy Associate:  S. Choo

Date:  5 June 2006