SZKHM v Minister for Immigration

[2007] FMCA 1055

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1055

MIGRATION – Dismissal of show cause application – non appearance by the applicant.

Applicant: SZKHM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG743 of 2007

Judgment of: Driver FM

Hearing date: 29 June 2007

Delivered at: Sydney

Delivered on: 29 June 2007

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the Respondent: Ms V McWilliam

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Court directs that the transcript of today’s proceedings and the judgment transcript be obtained and placed on the file and made available to parties and their legal representatives.

2. The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

4. The Court directs that the Minister arrange to have the orders made today entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her last known addresses for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG743 of 2007

SZKHM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application under the Migration Act 1958 (Cth) filed on 5 March 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application was originally docketed to a different Federal Magistrate and no hearing date was allocated when procedural orders were made by a Registrar on 5 April 2007. Subsequently, the matter was re-docketed to me and on 15 May 2007 I ordered that the matter be listed for hearing before me at 12.15 pm today.

2. I note from the Court file that the applicant and the Minister’s solicitors were informed in writing by the Court of the Court fixture on 15 May 2007.  The applicant did not appear and the listing order was made in her absence.  I have before me three exhibits.  Exhibit R1 is a letter dated 15 May 2007 from the Minister’s solicitors to the applicant directed to both her postal address and her residential address disclosed on her show cause application informing her of the order made by the Court on 15 May 2007.  I note that the letter incorrectly refers to the matter being listed for hearing at 12.30pm, whereas the attached order states 12.15pm.  Exhibit R2 is a letter to the Minister’s solicitors from the applicant’s panel advisor Annemarie Nichol, confirming that she had provided advice to the applicant and that the applicant confirmed that she had received a letter from the Court dated 2 May 2007 and intended to attend court today.  Exhibit C1 is a letter dated 21 June 2007 from the applicant’s panel advisor to the Court again confirming that panel advice had been provided and that the applicant would attend Court today.  The panel adviser also confirmed the correctness of the postal address for service shown on the show cause application. 

3. The applicant has not appeared for today’s final hearing.  The matter has been called three times and on each occasion the applicant failed to appear.  On the third occasion, the applicant was called by name.  There is no explanation for the applicant’s failure to appear.  An attempt was made to contact the applicant by telephone on a mobile telephone number shown on the show cause application but the telephone rang out.  It is now 12.34pm and the applicant still has failed to appear. 

4. I have decided, in the circumstances, to dismiss the application on account of the applicant’s non-appearance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.

5. The Minister seeks costs of $4,500 on a party and party assessment.  This is a final hearing and costs of $5,000 would have been payable under the Court scale at the conclusion of the hearing.  I accept that costs are not less than $4,500 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the applicant pay the Minister’s costs fixed in that amount. 

6. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of the orders to be served by ordinary prepaid post on the applicant at her last known postal and residential address, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

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

Associate: 

Date:  5 July 2007