SZJIC v Minister for Immigration

[2007] FMCA 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 130

MIGRATION – Review of Decision by Refugee Review Tribunal – practice and procedure – application dismissed pursuant to r.13.03A of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules2001, rr.13.03A; 16.05

First Applicant: SZJIC

Second Applicant: SZJID

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2513 of 2006

Judgment of: Emmett FM

Hearing date: 2 February 2007

Date of last submission: 2 February 2007

Delivered at: Sydney

Delivered on: 2 February 2007

REPRESENTATION

No Appearance by the Applicant

Counsel for the Respondent: Mr S. Free

Solicitors for the Respondent: Ms S. Hanstein, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2513 of 2006

SZJIC

First Applicant

SZJID

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03A of the Federal Magistrates Court Rules 2001 that the proceeding, commenced by way of application filed on 7 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal dated 17 August 2006, be dismissed by reason of the failure of the applicant to appear at today's hearing.

2. The matter was first before the Court on 26 October 2006 at which time directions were made for the setting down of the matter for hearing.  The applicant was given leave to file and serve an amended application and any affidavit evidence upon which he sought to rely by 21 December 2006.  The applicant was also directed to file and serve written submissions 14 days before the hearing. A notation in the order stated that, in the event there is no appearance by the applicant at the hearing, the proceeding may be dealt with and dismissed in the absence of the applicant.  There has been no further document received by the Court filed by or on behalf of the applicant since that date.

3. On 25 January 2007 the first respondent filed written submissions on behalf of the first respondents in accordance with the directions made on 26 October 2006. 

4. At 7.35pm last night a fax was received by the Court registry from the applicant dated 1 February 2007 and stating the following:

   “I am the applicant in the above mentioned application that has hearing tomorrow.

   When I made an application to the court I requested for a Legal Representative under RRT legal advice scheme. The court provided me a practitioner in October 06 but the practitioner has not contacted me and has not arranged any type of advise to make me understand whether I had a case to fight in the court or not.

   In the above situation, I am contacting a private lawyer and will take few days for me to organize the practitioner to assist me in my case.

   I request to Honorable (sic) Magistrate an “adjournment for a week” to prepare my arguments or if advised by the Practitioner negatively, I will withdraw the application within a week.  Once I arrange the lawyer, he/she will contact the court directly.

   Kindly consider allowing me time for the above. I apologies (sic) to the court and to the Minister for the inconvenience caused, due to lack of knowledge of the procedures.  I will bear the cost of occurred for the hearing of 2 Feb 2007.

   Kindly consider allowing me some time for the above.”

5. I understand from the fax that essentially the applicant is not intending to appear today because he was intending to contact a private lawyer and it would take a few days for him to organise for that to occur.  There has plainly been ample time for the applicant to take whatever steps he wished to obtain legal advice.  The letter itself does not assert that the applicant has in fact made contact with a lawyer, simply that he is intending to and it will take him a few days to do so.  There is no evidence in admissible form before this Court to the effect of the applicant's activities in relation to pursuing any legal advice. 

6. Had the applicant appeared this morning and sought an adjournment for the reason of obtaining legal advice, it is highly unlikely that he would have been successful in such an application. In the circumstances, the applicant's request for an adjournment made at 7.30pm last night in the fax is refused.  The applicant was clearly notified by this Court, on 26 October 2006, that if he failed to appear at this hearing, the matter may be dealt with and dismissed in his absence.  In the circumstances, I am satisfied that it is appropriate, to make the Orders sought by the first respondent.

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks costs fixed in the amount of $4,500.  I note that such sum sought is less than the amount provided in the costs schedule of the Federal Magistrates Court Rules 2001, a copy of which was provided to the applicant at the directions hearing on

   
   

   26 October 2006.

2. I direct the first respondent to provide a copy of this order to the applicant at his identified address for service together with a copy of r.16.05 of the Federal Magistrates Court Rules2001.  I direct that that be done forthwith.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM.

Deputy Associate:  Edwina Maconachie

Date:  20 February 2007