SZIMQ v Minister for Immigration

[2007] FMCA 1509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1509

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by the Applicant.

Federal Magistrates Court Rules, rr.13.03A(c), 16.05

Applicant: SZIMQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG748 of 2006

Judgment of: Barnes FM

Hearing date: 3 September 2007

Delivered at: Sydney

Delivered on: 3 September 2007

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That there being no appearance by the Applicant that the application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. The applicant shall pay the respondent’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 748 of 2006

SZIMQ

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant sought review by application filed in this court on 14 March 2006.  In his application and affidavit he provided one address as his home address and mailing address.  He provided a landline telephone number and a mobile phone number and there is nothing in the material before the court to indicate that he subsequently filed any notice of change of address.

2. At a directions hearing the matter was listed for hearing tomorrow at 10:15 before me.  It became necessary to change that date.  The Court wrote to the applicant at the address provided by him in his application for review by letter dated 22 May 2007 advising that the hearing would now be on 3 September 2007 at 10:15 rather than on 4 September 2007.  A copy of that letter is in the court file in an envelope marked ‘RTS’ which I take to indicate that it was returned to sender.  I am told from the bar table that the solicitors for the first respondent wrote to the applicant with a copy of written submissions referring to today’s hearing date.  That letter was sent to flat 6 rather than flat 67 which appears to be the address provided by the applicant in the review application.  Flat 6, however, the address on a form signed by the applicant headed Registrar’s List Migration Matters. 

3. The applicant was not present when this matter was called. My associate tried to telephone him on the numbers provided without success. In these circumstances counsel for the first respondent seeks that the application be dismissed for non-appearance pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules. I consider that it is appropriate to dismiss the matter for non-appearance, noting however in the circumstances of this case the provisions for setting aside of such an order in Rule 16.05 of the Federal Magistrates Court Rules.  If there is in fact an explanation for the applicant’s failure to appear today it would be open to him to seek to set aside the dismissal.

4. The first respondent also seeks costs in the sum of $5,000.  I consider that such an order is appropriate.

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

Associate: 

Date:  6 September 2007.