SZIJR v Minister for Immigration

[2006] FMCA 1144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJR & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1144

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant protection visas – where applicants did not attend court – where one applicant told the first respondent that the proceedings had been discontinued – no Notice of Discontinuance on Court file.

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

First Applicant: SZIJR

Second Applicant: SZIJS

Third Applicant: SZIJT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 529 of 2006

Judgment of: Scarlett FM

Hearing date: 8 August 2006

Date of last submission: 8 August 2006

Delivered at: Sydney

Delivered on: 8 August 2006

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Ms. McNaughton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 because of the non-attendance by the Applicants at the hearing.

2. I DIRECT the solicitor for the First Respondent is to write to the Applicants at their last known address within seven (7) days and inform them of the outcome of today’s proceedings and the provisions under Rule 16.05.

3. The Applicants are to pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 529 of 2006

SZIJR

First Applicant

SZIJS

Second Applicant

SZIJT

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the court is an application under Migration Act filed on 20^th February 2006. There are three Applicants who seek a review of a decision of the Refugee Review Tribunal signed on 20^th January and handed down on 31^st January 2006.

2. The Tribunal affirmed the decision of the delegate not to grant protection visas to the three Applicants.

3. One of the Applicants attended court in person on 8^th May 2006, which was the First Court Date of this application. On that occasion I listed the application for Final Hearing at 11:30am today and ordered an Arabic interpreter. The Arabic interpreter attended as did the Respondent’s solicitor and counsel, but none of the three Applicants appeared.

4. A telephone call was made on behalf of the First Respondent’s solicitors and the interpreter was able to speak to the Second Applicant. The Second Applicant said that the parties had withdrawn their application through their migration agent and that that had been done in early July. I’m informed by counsel for the First Respondent that the First Respondent has not received any documents purporting to be a withdrawal or a Notice of Discontinuance.

5. There is no Notice of Discontinuance on the Court file. If the Applicants did indeed give instructions to their migration agent to discontinue or withdraw these proceedings, that message does not seem to have got much further than the migration agent.

6. What I propose to do is dismiss the application on the basis of non-attendance by the Applicants on the date of the Final Hearing. I note that it is now 12 noon and I note that the Second Applicant at least has indicated through the interpreter that the Applicants are not attending court today.

7. I propose to direct the solicitor for the First Respondent Minister to write to the Applicants at their address for service informing them of the provisions of Rule 16.05 of the Federal Magistrates Court rules.

8. There is also an application for costs on behalf of the First Respondent. In my view this is an appropriate matter to make an order for costs on behalf of the First Respondent. The withdrawal or discontinuance of these proceedings today came as a surprise to the First Respondent and the First Respondent had been proceeding on the basis that the matter was for Final Hearing and the matter was prepared accordingly. Counsel was briefed and in my view this was an appropriate matter to brief counsel.

9. I propose to make an order for costs in favour of the First Respondent. The amount of $4,000.00 inclusive of counsel’s fees is sought. In my view that is a most appropriate figure and I propose to make an order for costs in that amount.

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

Associate:  Virginia Lee

Date:  11 August 2006