SZIXW v Minister for Immigration

[2006] FMCA 1069

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1069

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – failure of applicant to appear – first Court date adjourned due to medical certificate – applicant failed to appear at adjourned date – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001

Federal Magistrates Court Rules2001, r.13.03A(c); r.16.05; sch.1

Applicant: SZIXW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1645 of 2006

Judgment of: Emmett FM

Hearing date: 13 July 2006

Date of last submission: 13 July 2006

Delivered at: Sydney

Delivered on: 13 July 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms J. Bautista, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1645 of 2006

SZIXW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an interlocutory order dismissing the applicant’s application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001[FMCoA1] on the basis of the non-appearance of the applicant at today’s hearing.

2. On 8 June 2006 the applicant filed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 May 2006 and in respect of which he was notified on 17 May 2006.  On 8 June the applicant also filed an affidavit sworn on that date and annexing the Tribunal decision. 

3. The matter was set down for a first return date on 29 June 2006. However on 28 June 2006 the applicant faxed through a medical certificate in the following terms:

   “Ref [the Applicant], SYG1645 of 2006

   Subject: Application for a Medical Sickness

   Dear Sir

   I would like to inform you that I am [the Applicant] have a hearing on tomorrow, dated 29^th June 2006 at 9:30am (Thursday) on (sic) the Federal Magistrates Court of Australia, level 6 & 7, 88 Goulburn Street John Maddison Tower Sydney. Due to my sickness I am unable to (sic) the hearing and I apologise for in (sic) any inconvenience.

   In this circumstances stated above, I would be highly appreciate if you could kindly grant my application & oblige thereby.

   Yours faithfully

   [the Applicant].

   …

   Attachment:

   Medical certificate.”

4. Because of the applicant’s note, the first return date was adjourned until this morning's date and the Minister was directed on 29 June 2006 to notify the applicant of today's date.

5. The first respondent relies on a letter dated 3 July 2006 and sent to the applicant at the applicant's identified address on the application as both his address for receiving mail and his home address.  I note that the address is also the same address as identified by the applicant on his medical certificate.  That letter is marked ‘exhibit 1R.’ 

6. The first respondent also relies on a letter dated 12 July 2006 enclosing to the applicant the response filed by the first respondent in the Federal Magistrates Court on 12 July 2006.  That letter is ‘exhibit 2R.’ 

7. I also note that the first respondent's legal representative, Ms Bautista, attempted to telephone the applicant at the identified telephone number on his application and that there was no answer and it went through to a messaging service.  I accept that that is the position and I note that Ms Bautista is an officer of the Court and in the circumstances I do not require Ms Bautista to give that evidence in a sworn form. 

8. In the circumstances, I am satisfied that the applicant was aware of today's date and for whatever reason, has chosen not to come.  I note that there has been no communication received from the applicant by either the first respondent or my Chambers. 

9. In the circumstances, the applicant’s proceeding is dismissed pursuant to pt.13 r.13.03A(c) of the Federal Magistrates Court Rules2001[FMCoA2].

10. The first respondent seeks costs fixed in an amount of $1000 pursuant to pt.2 r.1(a) of sch.1 of the Federal Magistrates Court Rules 2001.  I note that costs of $1000 are provided for if a proceeding is concluded at or before the first Court date for the proceeding.  In the circumstances, I order that the applicant pay the first respondent's costs fixed in an amount of $1000.

11. I direct the first respondent to prepare for filing a copy of the orders that I have made this morning, and I also direct the first respondent to notify the applicant of the orders made together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  27 July 2006

[FMCoA1]Sylvia – add ‘should succeed’?

[FMCoA2]Sylvia – add ‘should succeed’?