SZICF v Minister for Immigration

[2006] FMCA 1652

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1652

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Dismissal – non-appearance – Rule 13.03A.

Migration Act 1958 (Cth)

Applicant: SZICF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG111 of 2006

Judgment of: McInnis FM

Hearing date: 6 November 2006

Delivered at: Sydney

Delivered on: 6 November 2006

REPRESENTATION

Applicant: No Appearance

Counsel for the First Respondent: Ms K McNamara

Solicitors for the First Respondent: Phillips Fox

ORDERS

1. Pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 the application as amended be dismissed due to non-appearance of the Applicant.  

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 111 of 2006

SZICF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application, upon the matter being called, there was no appearance for the Applicant.  I am satisfied that by letter dated 3 April 2006 the Applicant has been given notice of the hearing this day. 

   
   

   That notice, forwarded by the court, was sent to an address in Rockdale, New South Wales, which I am satisfied is the appropriate address for service of documents by the court.  So much is clear from an amended application filed on 4 May 2006 by the Applicant, no doubt in compliance with orders that have been made by the court on an earlier date in relation to the filing and service of an amended application.

2. I note in the amended application that the Applicant states, amongst other things, the following in paragraph 3, and I quote:

   “3.    It is very odd that I have been requested to provide an amended application before I obtain free legal advice.  This is unfair to me.  I feel that I have been singled out and have been treated differently.”

3. Further in the same document the Applicant states, and I quote:-

   “5.    I need time to engage a proper solicitor to prepare for the case.  I have not yet received any free legal advice from the lawyer appointed or recommended by the Court.  This is unfair to me.  I await an appointment from the ‘scheme’.  I am not a legally trained person.  I DO need legal advice to prepare legal documents.”

4. In the circumstances where the Applicant, although filing a document on 4 May 2006 indicating that further time was required, it is my concluded view that given this hearing is now occurring on 6 November 2006, that the Applicant has had more than an ample opportunity to arrange for either advice and/or representation in this matter.  It is the responsibility of Applicants in these circumstances, to at the very least, either attend court on the scheduled hearing date of which they have been given adequate and appropriate notice or to communicate with the court and/or the Respondent any request for the matter to be further adjourned.

5. In the absence of any contact from the Applicant and having been satisfied that the Applicant has received appropriate notice, in my view, it is appropriate for the court, pursuant to the Rules, to dismiss the application as a result of non-appearance of the Applicant.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  6 November 2006