SZIRL v Minister for Immigration

[2006] FMCA 1211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIRL v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1211

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – where applicant did not attend court – application dismissed for non-appearance.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
Federal Magistrates Court Rules 2001, r. 13.03A

Applicant: SZIRL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1103 of 2006

Judgment of: Scarlett FM

Hearing date: 15 August 2006

Date of last submission: 15 August 2006

Delivered at: Sydney

Delivered on: 15 August 2006

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Nanson

Solicitors for the Respondent: Australian Government Solicitor

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) of the Federal Magistrates Court Rules 2001 for non-attendance by the Applicant.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1103 of 2006

SZIRL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal that was signed on 21^st February 2006 and handed down on 14^th March. 

2. The Applicant did not attend the hearing of the Tribunal and the Tribunal exercised its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.

3. The Applicant commenced the proceedings in this Court by means of an application filed on 12^th April 2006, which was accompanied by an affidavit.

4. On 22^nd May when the application was before the Court I made orders for the filing of Court books and other documents and listed the matter for Final Haring at 3:00pm today.  I ordered a Mandarin interpreter to be present.

5. The solicitors for the First Respondent Minister have complied with my directions and Ms Nanson from the Office of the Australian Government Solicitor has appeared today on time. The Mandarin interpreter, as ordered, appeared on time. Only the Applicant has not.

6. My staffs are mindful of the need to be aware of faxed medical certificates, inquiries, telephone messages and even the eventuality that an applicant will get confused and proceed to the Courts that we have at Queens Square, at least for the time being, by mistake. There is no indication from the Applicant that she has been delayed or that she is ill or injured or in some way hindered or prevented from attending Court.  There is no message that she has gone to the wrong Court by mistake.

7. The application was called ten minutes after three; the Applicant did not appear. The Applicant did not appear 12 minutes after three. It is now 3:20pm and she has still not appeared. It appears unlikely, to say the least, that she is going to attend and there is no explanation for her absence.

8. In my view this is an appropriate matter to dismiss the application under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 for the non-attendance by the Applicant at the hearing.

9. I do note that the solicitors for the First Respondent wrote to the Applicant on 31^st July 2006, reminding her of the hearing and forwarding a sealed copy of their written submissions. The letter says, relevantly:

   Should you fail to appear on the above date, please note that orders will be sought that your application be dismissed with costs and without further notice to you.

   That letter accurately set out what would happen if the Applicant did not appear. As I said, I will be dismissing this matter for non-attendance. 

10. I will also be making an order for costs in favour of the First Respondent Minister. The Respondent seeks only the sum of $2,000.00, which appears to me to be a modest sum in the circumstances

11. I also note that when the proceedings were commenced, the Respondent Minister was described as the Minister for Immigration & Multicultural & Indigenous Affairs. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  21 August 2006