SZHND v Minister for Immigration

[2006] FMCA 360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHND v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 360

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Malaysia – where applicant did not attend court for final hearing.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrates Court Rules 2001 r.13.03A

Applicant: SZHND

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3226 of 2005

Delivered on: 3 March 2006

Delivered at: Sydney

Hearing date: 3 March 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Mr Potts

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the costs of the Respondent Minister fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3226 of 2005

SZHND

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 16^th September and handed down on

   
   

   11^th October 2005.  The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant who is a citizen of Malaysia.

2. She had arrived in this country on 31^st January 2005 and lodged an application for Protection (class XA) visa on 23^rd March of that year.  That application was refused on 28^th April 2005 and on 17^th May she applied to the Refugee Review Tribunal for review of that decision.

3. The Applicant attended a hearing of the Tribunal on 23^rd July 2005 and gave oral evidence. She was assisted by an interpreter in the Tamil language. The Tribunal after hearing the Applicant's evidence and considering independent country information was satisfied that the Applicant was a Malaysian citizen but was not satisfied that there was a real chance of her being persecuted for reason of her race, religion, imputed political opinion or any other Convention ground upon her return to Malaysia. The Tribunal did not accept a number of the Applicant's contentions contained in her oral evidence, which were in fact key matters relating to claim.

4. The Applicant commenced proceedings for review of that decision under the provisions of s.39B of the Judiciary Act. She filed an application for review of that decision on 4^th November 2005 and on 5^th December the application came before this Court where I made directions for filing appropriate documentation and listed the matter for Final Hearing at 2:15pm today. The Applicant indeed told the Court on that occasion that she intended to be legally represented.

5. The Applicant did not file and serve any Amended Application in the time provided. The Respondent Minister did file a bundle of Relevant Documents in the form of a Court Book within the time provided by the Court. The application was listed for hearing at 2:15pm today and the Court had made available the services of a competent interpreter in the Tamil language. As it turned out, due to the pressure of other business, the Applicant's case was not called until 5 minutes to 3.

6. There has been no appearance by the Applicant, nor has any message been received by the Court, either at the Registry or from my Associate, from the Applicant or from anyone on her behalf indicating that she has been hindered, delayed or otherwise prevented from attending Court today either through illness, injury or other reasons.  There has in fact been no communication from the Applicant or from any legal practitioner on her behalf.

7. I am satisfied that the Applicant is not now going to attend and there is no point in the matter remaining in the list any further. I am satisfied that the application should be dismissed pursuant to the provisions of Rule.13.03A(c) for the non-attendance of the Applicant at the Final Hearing. I am also satisfied that the Applicant should pay the costs of the First Respondent Minister, now known as the Minister for Immigration and Multicultural Affairs. Those costs are estimated on a party-party basis at $4,500.00 inclusive of counsel's fees.

8. In my view, that is well within the range envisaged by Schedule 1 of the Federal Magistrates Court Rules 2001. As no indication was given from the Applicant that she was not going to attend and the last information received by the Minister's solicitors were that (a) she was going to attend and (b) she was going to be legally represented, it was appropriate that the case should be prepared for Final Hearing and it was appropriate that counsel should be briefed. I certify for counsel as provided by the rules.

9. The Applicant is to pay the costs of the Respondent Minister fixed in the sum of $4,500.00. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  13 March 2006