SZJZJ and Minister for Immigration and Anor
[2007] FMCA 362
•14 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 362 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the applicant invoked the Court’s jurisdiction pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 – whether the Court could dismiss the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001. |
| Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05 Judiciary Act1903 (Cth), s.39B Migration Act 1958 (Cth), pt.8 div.2 |
| Applicant: | SZJZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG32 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 March 2007 |
| Date of Last Submission: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2007 |
REPRESENTATION
| No appearance for the Applicant |
| Solicitors for the Respondent: | Ms M. Palmer, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG32 of 2007
| SZJZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 4 January 2007 the applicant filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 October 2006. The applicant filed an affidavit in support of that application annexing a copy of the decision. of the Tribunal (“the Affidavit”).
On 10 January 2007 the first respondent filed a Notice of Appearance, and on 2 February 2007 filed a Response.
The applicant's application set the matter down for a directions hearing on Thursday, 15 February 2007, at 9.30 am. There was no appearance by the applicant at that first return date and the first respondent sought an order that the application be dismissed, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.
The Court made that order and directed the first respondent to provide a copy of the order to the applicant, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.
On 15 February 2007 an application identified as an interlocutory application was accepted for filing by the Registry. That application sought a final order in the following terms:
“Set aside RRT decision.”
That application also sought the following interim or procedural orders:
“(1) Set aside RRT decision;
(2) To have my matter heard as per my original application.”
In support of that document an affidavit was also accepted for filing. That affidavit asserted the following:
“I Marissa B. Domondon, with a resident address #64/5 Captain Pipers Road Vaucluse 2030, unemployed, make oath and say/affirm
I went to my friends house before I go to court to borrow some money but unfortunately the train stop because there is someone collapsing. But I came to the court at around 10.15 but mistakenly go to level 6 but I was supposed to upstairs in level 7.”
The application accepted for filing clearly does not seek any order setting aside the decision of this Court to dismiss the proceeding before it made on15 February 2007.
However, the affidavit would suggest that the applicant is purporting to provide an explanation why the applicant did not attend the first return date on 15 February 2007.
The first respondent, in response to that application, filed an affidavit of Megan Louise Palmer, sworn 12 March 2007, annexing various documents culminating in the decision of the Tribunal, dated 27 October 2006.
The applicant has not sought an order, pursuant to r.16.05 of the Federal Magistrates Court Rules 2001. However, the first respondent has proceeded on the basis that the Court's jurisdiction was properly invoked. In the circumstances, I shall proceed on the basis that the applicant, who was unrepresented, was intending to invoke the jurisdiction of the Court under r.16.05 of the Federal Magistrates Court Rules 2001 in seeking to set aside the order made by this Court on 15 February 2007, dismissing the proceeding.
The application was set down for hearing through my Chambers today, at 2.15 pm. It is now 2.50 pm. The applicant has been called on three occasions and there has been no appearance for the applicant.
I note that there was a letter sent to the applicant at the applicant's only address identified on the document filed by the applicant on 15 February 2007. There have been three letters sent to that address, two from this Court, one on 21 February 2007 and one on 22 February 2007.
RECORDED : NOT TRANSCRIBED
I note that the Court's letter dated 22 February 2007 was returned to the Court marked "Return to Sender", although the Court's letter dated 21 February 2007 to the same address was not returned.
The first respondent tendered a letter, dated 12 March 2007, from Bonds Express to Sparke Helmore, marked Exhibit 1R, in the following terms:
“Please be advised that your delivery from Sparke Helmore Lawyers Sydney to Marissa Domondon at Vaucluse was unable to be delivered as the address given (Unit64/5 Captain Pipers Rd) did not exist. Number 5 was a private house and the residents had not knowledge of the recipient. The driver also tried Unit 5/64 Captain Pipers Rd with the same result.
Upon your request, we have arranged for the item to be returned to you office.”
In the circumstances, and having regard to the manner in which the documents filed by the applicant have been dealt with by the first respondent and this Court, the first respondent seeks an order, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 that the document purporting to be an interlocutory application filed on 15 February 2007 be dismissed by reason of the failure of the applicant to appear today.
On one view, as I have stated earlier, the jurisdiction of this Court has not been invoked at all by the applicant. However, in circumstances where the matter has been set down on the basis that the Court's jurisdiction was invoked and the first respondent having accepted that the Court's jurisdiction was invoked, I will accept the documents, filed by the applicant on 15 February 2007 (being the documents headed, “Interlocutory Application” and “Affidavit”) as intending to seek an order setting aside the orders made on 15 February 2007, dismissing the applicant's proceeding before this Court.
In the circumstances, I am satisfied that the applicant was aware of today's Court appointment and for whatever reason has chosen not to appear.
In light of the manner in which I have accepted the documents filed by the applicant on 15 February 2007, I am satisfied that the orders sought by the first respondent, dismissing the application for reinstatement by reason of the non-appearance of the applicant, are appropriate and should be made.
RECORDED : NOT TRANSCRIBED
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 30 March 2007
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