SZKEO v Minister for Immigration

[2008] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKEO v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 173

MIGRATION – Review of decision of the Refugee Review Tribunal – no appearance – matter dismissed for non-appearance.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05

Applicant: SZKEO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 444 of 2007

Judgment of: Nicholls FM

Hearing date: 18 February 2008

Date of Last Submission: 18 February 2008

Delivered at: Sydney

Delivered on: 18 February 2008

REPRESENTATION

Appearance for the Applicant: No appearance

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr G T Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 12 February 2007 is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

3. Within seven (7) days of the making of these orders the first respondent’s solicitors write to the applicant at the address for service notifying the applicant of the orders made today and of Rule 16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 444 of 2007

SZKEO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. The first respondent Minister has made the application that I dismiss the applicant’s application to the Court pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) due to the failure of the applicant to appear today to press his application. I note the applicant’s application was made to the Court on 12 February 2007. The applicant then appeared before a Registrar of this Court on 22 March 2007 and was assisted by an interpreter in the Mandarin language. The matter at that time was listed for a call over in June 2007 and other orders were made relating to the conduct of the application before the Court, including the filing of an amended application, evidence and other matters of that type.

2. The applicant did appear before the Registrar on 22 June 2007, again in person with the assistance of an interpreter in the Mandarin language.  The application was then listed for final hearing at 2.15pm on 18 February 2008 before me at John Madison Tower, 88 Goulburn Street, Sydney.  I also have before me the first respondent’s Exhibit 1 (“RE 1”) which is a letter dated 6 February 2008 to the applicant from the first respondent’s solicitors enclosing a copy of written submissions and reminding the applicant of the time, date and place of the hearing.  That letter was sent to the applicant’s address in Padstow, New South Wales, which is the only address that the applicant has provided in his application to the Court.

3. When the matter was called today outside the Court, the applicant did not appear.  I adjourned briefly.  On resumption the matter was also called in the foyer of this building and on levels 5 and 6 where other Federal Magistrates are sitting today in migration matters, in the event that the applicant had been misdirected to another court room.  It is clear that it is now well past 20 minutes past the hour and the applicant has not appeared.  No application for an adjournment has been made to the Court.  Nor has the Court received any notification; nor, I assume, have the first respondent’s solicitors received any notification.  

4. The applicant’s failure to appear today is unexplained.  In all the circumstances I am satisfied that the applicant had notice of the matter set down today.  I note that beyond the making of the application on 12 February 2007, and the filing of two affidavits accompanying the application on that day, nothing further has been put before the Court by the applicant, and certainly there has been nothing from the applicant in compliance or consistent with any orders relating to the filing of an amended application or additional evidence.  Since 22 June 2007, therefore, nothing further has been heard from the applicant and in all the circumstances I am satisfied the applicant had clear and more than adequate notice of the final hearing that was set down today.  No explanation has been put before the Court today as to any difficulty or inability to attend, or as to any failure to attend.  In all the circumstances, it is appropriate that this matter be dismissed for want of appearance, and I will make that order.

5. I will also make an order that the first respondent’s solicitors, within a reasonable time, write to the applicant at the address for service, notifying him of the orders made today and of the existence of r.16.05 of the Rules. It is also appropriate in all the circumstances that I make an order in relation to costs. The first respondent Minister has sought that an order be made in a set sum of $5,000. There is nothing before the Court to argue against the making of such an order. Clearly, the first respondent’s legal representatives have attended at Court on each occasion that was required of them, multiple copies of the Court Book have been prepared, and written submissions have been prepared, served and filed in this matter. I note in particular that Counsel was briefed and I note Counsel’s attendance at Court today. Work has been done by the first respondent’s legal representatives and clearly the first respondent’s legal representatives were prepared to respond to the application before the Court today at the final hearing. In all, the order should be made and as to the amount sought (I note again various attendances before the Court and preparation of the Court Book and submissions, and the briefing and attendance by Counsel), that amount is consistent with the amount set out in the relevant Schedule to the Rules of this Court, although I take the view I am not bound by that Schedule and that it is a guide. In all the circumstances, being mindful of the work that has been done, the amount sought is a reasonable amount and I will make that order.

6. I note that while I have been delivering that consideration we have now moved to well past 25 minutes past the scheduled time and the applicant still has not appeared.  I will now proceed to formally make the orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  13 March 2008