SZLAK v Minister for Immigration

[2007] FMCA 1271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1271

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 200.

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

Applicant: SZLAK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2070 of 2007

Judgment of: Emmett FM

Hearing date: 26 July 2007

Date of last submission: 26 July 2007

Delivered at: Sydney

Delivered on: 26 July 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms Tondl, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2070 of 2007

SZLAK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding commenced by way of application on 5 July 2007 be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at today’s hearing, directions hearing.

2. The matter was set down for first return date on 26 July 2007 when the applicant filed his application on 5 July 2007.  This morning, I am informed a letter was handed to the security guard who handed it to my associate, in the following terms:

   “Dear Judge of Federal Magistrates Court,

   I greatly apology to you for I can’t appear before you at the Court because I have planned to take the plane of 6am from Melbourne to Sydney which can make me appear before you at 9:30am but when I got the airport, the staff told me no ticket available and there are only tickets of 9am available. I think it is impossible for me to get to Sydney before 9:30 so I called my friend to act on my behalf to write the letter to ask you whether you could kindly change the Hearing date which gives me the last chance to appear before you.

   I’ll greatly appreciate your kindness.

   Yours faithfully

   [Applicant]”

3. The letter is unsigned.  The letter was handed to the Court’s security guard by an unknown person and then forwarded to my associate. 

   
   

   In the circumstances I am satisfied the applicant was aware of today’s proceeding and for whatever reason has chosen not to attend.

4. In the circumstances I am satisfied that the order sought by the first respondent is appropriate.

5. I order that the proceeding before this Court, commenced by way of application filed on, 5 July 2007 be dismissed.

6. I direct the first respondent to notify the applicant forthwith of the orders together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

7. I order that the applicant pay the costs of the first respondent fixed in the amount of $1000.

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

Associate:  S. Kwong

Date:  30 July 2007