SZIFO v Minister for Immigration and Anor (No.2)

[2006] FMCA 1252

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFO v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 1252

MIGRATION – Visa – protection visa – Refugee Review Tribunal –Application for review of RRT decision that it has no jurisdiction – where delegate’s decision previously reviewed – further application for review.

PRACTICE & PROCEDURE – Setting aside judgment – application to set aside judgment where application had been dismissed because the applicant was absent from the hearing – where applicant did not attend hearing of application to set aside.

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

SZIFO v Minister for Immigration & Anor [2006] FMCA 780

Applicant: SZIFO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 295 of 2006

Judgment of: Scarlett FM

Hearing date: 21 August 2006

Date of last submission: 21 August 2006

Delivered at: Sydney

Delivered on: 21 August 2006

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Mr Muthalib

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed pursuant to Rule 1303A(c) of the Federal Magistrates Court Rules 2001 for non-attendance by the Applicant.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 295 of 2006

SZIFO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside a decision of this Court that was made on 22^nd May 2006 due to the non-appearance by the Applicant.  The substantive application was an application for review of a decision of the Refugee Review Tribunal. The Tribunal decided on 3^rd January 2006 that it did not have jurisdiction to review the decision of the delegate of the Minister made on 29^th May 2000.

2. The Applicant applied for a protection visa on 9^th May 2000. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant a protection visa to the Applicant. The Applicant sought a review of that decision. There were other proceedings and eventually the Applicant applied again to the Refugee Review Tribunal.  The Tribunal decided that it had no jurisdiction because the delegate’s decision had previously been reviewed by the Refugee Review Tribunal. 

3. The Applicant filed an application for review of that decision which had been listed for hearing on 11^th May 2006. The Applicant sent a medical certificate shortly before that time and I adjourned the matter for Final Hearing to 11:00am on 22^nd May 2006. The Applicant did not attend Court for the hearing and I dismissed that application under the provisions of r.13.03A of the Federal Magistrates Court Rules. The citation for that decision is SZIFO v Minister for Immigration & Anor [2006] FMCA 780.

4. The Applicant then on 4^th August 2006 filed an application to set aside that decision accompanied by an affidavit.  The affidavit said:

   I was unable to attend the hearing due to severe back pain.  I was not able to walk or move for a few weeks.  I do not have access to Medicare and I was not able to take medical help.  The matter was dismissed in my absence because I was not present in the hearing.  I believe that there is an arguable case in my matter.  I seek the Honourable Court’s order to reinstate the matter so that I can attend the hearing and the matter can be heard.

5. The application was listed for hearing at 11:00am today.  The Applicant has not appeared.  He was called at 11:14am and 11:33am and there has been no answer to the call and there has been no message from the Applicant or from anyone on behalf of the Applicant advising that he has been delayed or hindered or prevented from attending Court. 

6. I propose, therefore, to dismiss the application again under the provisions of r.13.03A for non-appearance by the Applicant. The Applicant is to pay the First Respondent’s costs which are fixed in the sum of $500.00. I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  28 August 2006