SZJMM v Minister for Immigration

[2006] FMCA 1904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1904

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 of Federal Magistrates Court Rules 2001 – whether application should be dismissed pursuant to r.13.03A(c) of Federal Magistrates Court Rules 2001 for non-appearance by applicant.

Federal Magistrates Court Rules 2001, rr.13.03A(c); 44.12

Applicant: SZJMM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2884 of 2006

Judgment of: Emmett FM

Hearing date: 5 December 2006

Date of Last Submission: 5 December 2006

Delivered at: Sydney

Delivered on: 5 December 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms E. Warner Knight, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2884 of 2006

SZJMM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now 2.30 pm. The applicant has been called on three occasions since 2.15pm. A show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 was set down for hearing by me on 22 November 2006 for 2.15pm this afternoon, on the motion of the first respondent. The first respondent seeks an order this afternoon that the applicant's proceeding before this Court, commenced by way of application filed on 9 October 2006, be dismissed, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001, which provides that if a party to a proceeding is absent from a hearing, including the first Court date, the Court may dismiss the application.

2. The applicant attended the first Court date directions hearing on 22 November 2006, and indeed, signed an acknowledgement of receipt of the Order.  The Order granted leave to the applicant to file and serve an amended application by 1 December 2006 and set the matter down for hearing.  The Order also directed the applicant to file and serve any change of address for service or contact details immediately upon any such change and notified the applicant that, in the event there is no appearance by the applicant at the hearing, the proceeding may be dealt with and dismissed in his absence.

3. At that first Court date, I note that a notice of change of address for service was accepted for filing in Court in respect of the applicant's address for service and new postal address.  I also note that an amended application stamped ‘filed 1 November 2006’, and was in fact filed on 1 December 2006, identifies a different address to the applicant than that on the notice of change of address form filed in Court on

   
   

   22 November 2006.  I also note that the grounds disclosed in that amended application are in a familiar form that is seen with some regularity in this Court.

4. The applicant's application filed on 9 October 2006 otherwise expresses grounds in general terms that are unparticularised beyond the mere assertion of the ground.  There have been no communications from the applicant to this Court in respect of this matter since the first Court date.  I am informed by the solicitor for the first respondent that neither the first respondent nor her legal advisors have received any communication from the applicant, other than the amended application to which I have already referred.  In the circumstances, I am satisfied that the applicant is aware of this afternoon's hearing, and for whatever reason, has chosen not to attend. 

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

5. In the circumstances, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001, the applicant's proceeding before this Court seeking judicial review of a decision of the Refugee Review Tribunal dated 12 September 2006, and in respect of which he was notified on 21 September 2006, is dismissed. 

   ORDER DELIVERED

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  20 December 2006