SZKNH v Minister for Immigration

[2007] FMCA 2137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2137

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

Migration Act 1958
Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05

Applicant: SZKNH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1242 of 2007

Judgment of: Nicholls FM

Hearing date: 12 December 2007

Date of Last Submission: 12 December 2007

Delivered at: Sydney

Delivered on: 12 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 17 April 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 $2,600.

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 1242 of 2007

SZKNH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This application was made pursuant to the Migration Act 1958 (Cth) (“the Act”) on 17 April 2007. There was an affidavit in the usual way attaching the Tribunal’s decision record. On 3 May 2007, at the First Court Date, the applicant did appear and was unrepresented, but had the assistance of an interpreter in the Mandarin language. Orders were made, by consent, on that day for the progression of the case and the matter was set down for Callover at 3.15pm on 22 June 2007. On 22 June 2007, there was no appearance by the applicant at that Callover, but there is a copy of correspondence on the Court’s file to the effect that the applicant was sick, and was not able to attend. I note that in that correspondence of 22 June 2007, the applicant notifies his address as a Post Office Box in Cabramatta, which is consistent with the address that he had given in the application.

2. Orders were made on that day by the Registrar, and in compliance with those orders the Minister’s solicitors wrote to the applicant by letter dated 25 June 2007 notifying the applicant that his matter had been set down for final hearing before me at 10.15am on 12 December 2007. I mark that letter as Respondent’s Exhibit 2 – “RE 2”. I also have before me further communication from the Minister’s solicitors to the applicant notifying the applicant again of the matter having been listed for hearing at 10.15am on 12 December 2007 at John Maddison Tower, and putting the applicant on notice that failure to attend would result in the Minister seeking dismissal with costs.

3. I also have before me today the letter dated 3 December 2007, again from the Minister's solicitors to the applicant, notifying the applicant yet again of the hearing at 10.15 am, 12 December 2007, and this time additionally identifying the Court as “Court 7A on Level 7 of John Maddison Tower”, and again reminding the applicant of the Minister’s position should the applicant fail to attend.

4. I note that in all, that correspondence from the Minister’s solicitors was sent to the Post Office Box address in Cabramatta, notified by the applicant as the address for receiving mail, and consistent with the address provided by the applicant himself on 21 June 2007 in his communication to the Court. Given all of that, I am satisfied that the applicant has had more than adequate notice of the matter being set down for hearing today, and of the time, and of the place, for the hearing.

5. Nothing has been heard from the applicant, either by the first respondent’s solicitors, or indeed the Court, to notify of any difficulties in attending today at the time, date and place, nor has there been any request for an adjournment made. Nor is there any explanation by the applicant before the Court now to explain the failure to attend. I note this in contrast to what occurred on 22 June 2007 when the applicant did send a communication to the Court. It was plainly open to the applicant if there was any difficulty, should he still have had the intention to have attended today, to the applicant to have done in relation to today exactly what he had done in relation to the matter before the Court on 22 June 2007. He has not taken any such action.

6. In all, therefore, I am satisfied that the applicant has been given notice, and has had the opportunity to attend the final hearing of his matter. It is now more than 25 minutes past the scheduled time for commencement of the hearing and there still has been no appearance by the applicant. Given all the circumstances to which I have just referred, I am satisfied that the hearing should proceed now and agree with the Minister’s request that the matter be dismissed for want of appearance by the applicant. Having said that, I note that this is an applicant who did not attend at the Tribunal hearing and that also, based on the material that was before the Court, that non-appearance appears to be unexplained. While he attended at the First Court Date and gave explanation in relation to the Callover, plainly no such explanation, or approach, or communication, has been made in relation to the matter today.

7. I will therefore make the order that the matter be dismissed pursuant to Rule 13.03.A(c) of the Federal Magistrate Court Rules 2001. It is appropriate that an order for costs be made. It is quite clear that the Minister’s legal representatives have been put to having to engage in a number of tasks which would have incurred legal costs for the Minister, including the filing of Court Book, attendance at a number of Court dates, responding to the applicant’s application, the filing of evidence, filing of submissions, and preparation for the hearing today. There is nothing before the Court to argue that the costs order should not be made. As to the amount, and again with reference to the work that has been done, I am satisfied that the amount sought is a reasonable amount in all the circumstances, and I will make an order in those terms.

8. Noting again for the record that it is now half an hour past the scheduled time, and again there is no appearance by the applicant, I now proceed to formally make the orders.

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

Associate:  A Douglas-Baker

Date:  21 December 2007