SZHRR v Minister for Immigration

[2006] FMCA 1315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1315

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a delegate of the Minister affirming the decision not to grant the applicant a protection visa – applicant is a citizen of The People's Republic of China – applicant claims to be a Falun Gong practitioner – applicant did not attend RRT hearing – where applicant did not attend the Federal Magistrates Court hearing – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 r.13.03A(c)

Applicant: SZHRR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3487 of 2005

Judgment of: Scarlett FM

Hearing date: 22 August 2006

Date of Last Submission: 22 August 2006

Delivered at: Sydney

Delivered on: 22 August 2006

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The application is dismissed pursuant to Rule 13.03A(c) due to the non-appearance by the Applicant at Court.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3487 of 2005

SZHRR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. The applicant in this case has applied for review of a decision of the Refugee Review Tribunal that was made on 13^th October and handed down on 8^th November 2005. The applicant has not attended the hearing today. 

2. The application first came before this Court on 22^nd December 2005 where the applicant appeared and was assisted by a Mandarin interpreter.  The matter was next before a registrar of the Court for a call over on 17^th March 2006.  The applicant appeared and was assisted by a Mandarin interpreter.  The registrar listed the application for final hearing at this Court at 10.00 am today.  The applicant has not appeared.  The applicant has been called twice at 10.02 am and

   
   

   10.23 am.  No-one has answered the call.  I adjourned the proceedings for a short period of time to allow inquiries to be made to see if any message had been received from the applicant or from someone on the applicant's behalf indicating that he had been hindered or delayed or prevented from attending Court.  No such message has been received.  No message has been received indicating that the applicant may have gone to the wrong Court by mistake as sometimes happens. 

   
   

   No medical certificate has been faxed through.

3. The solicitor for the respondent, Ms Nesbitt, has tendered a letter dated 4^th August 2006 sent to the applicant by Express Post, reminding the applicant of the hearing today at 10.00 am, enclosing a copy of the submissions and informing the applicant that he is required to attend Court on this occasion.  The applicant was also informed that if he did not attend the respondent would seek orders from the Court that his matter be dismissed and that he pay the minister's legal costs for the proceedings.

4. In my view there is a clear and fair warning described in that letter and as the applicant, for no reason known to me, has not attended, in my view it is appropriate, as the respondent submits, to dismiss the matter under the provisions of rule 13.03A(c) for non-attendance by the applicant to the hearing.  I also propose to make an order for costs in favour of the first respondent.  The amount of $2,600.00 is sought and in my view that is a modest sum and well within the scale.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  1 September 2006