SZKSA v Minister for Immigration

[2008] FMCA 1312

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKSA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1312

MIGRATION – Persecution – review of Refugee Review Tribunal decision – application dismissed for non-attendance.

Federal Magistrates Court Rules 2001 r.13.03A

First Applicant: SZKSA

Second Applicant: SZKSB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1967 of 2008

Judgment of: Cameron FM

Hearing date: 22 August 2008

Date of Last Submission: 22 August 2008

Delivered at: Sydney

Delivered on: 22 August 2008

REPRESENTATION

No appearance by the Applicants.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 the application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1967 of 2008

SZKSA & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now five past ten and although the matter was called outside the Court there has been no appearance for or by the applicants today. This is the second occasion on which the matter has been before the Court. The first occasion was earlier this week on 18 August 2008 when the matter was listed for a first court date and there was no appearance by or for the applicants on that occasion either.

2. Following their failure to attend the first court date the Court wrote to the applicants by express post on 18 August 2008 advising them that the matter had been relisted for directions today. On 19 August 2008 the respondent’s solicitors wrote to the applicants; that letter is exhibit 1 on the Minister’s application that the proceedings be dismissed today pursuant to r.13.03A of the Federal Magistrates Court Rules 2001.

3. In that letter, which is noted to have been sent by express post, the Minister’s solicitors say:

   If you do not attend the directions hearing at 10:00 a.m. on Friday, 22 August 2008, whether in person or by a legal representative, we are instructed to ask the Court to dismiss your application with costs.

4. Following the mention of the matter on 18 August 2008, my Deputy Associate telephoned the applicants and managed to speak with the assistance of a Hindi interpreter to the first applicant. He told my associate that he did not attend court on 18 August because he had:

   a long term fracture

   and he needed bed rest. He said that his friend had faxed information to the Court concerning this matter. No such information has been received.

5. While a long term fracture might limit the first applicant's mobility, absent evidence on the question by way of medical certificate or something similar, I would not conclude that such an injury would prevent an applicant from attending Court for a directions hearing. This is particularly so given the nature of the proceedings. If the applicants are to be accepted in their claim that they should be granted protection visas because they have a well-founded fear of persecution for a Convention reason, these proceedings would be of the utmost importance to them.

6. This is equally so in respect of the second applicant and yet nothing has been suggested as a reason for her non-attendance on either occasion the matter has been before the Court. It may be that the applicants’ non-attendance can be explained by the nature of this proceeding given that it is an application for judicial review of a Refugee Review Tribunal decision in which the Tribunal concluded that it had no jurisdiction to entertain the review application before it because it was functus officio.

7. Whatever the case, the applicants have failed to attend twice in a week and the Minister has sought an order that the proceedings be dismissed. I am satisfied that that is an appropriate order to make in the circumstances.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  18 September 2008