SZLDE v Minister for Immigration

[2007] FMCA 1919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1919

MIGRATION – Visa – review of Refugee Review Tribunal decision – applicant failed to attend Federal Magistrates Court hearing – application dismissed for non-attendance.

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

Applicant: SZLDE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2364 of 2007

Judgment of: Nicholls FM

Hearing date: 7 November 2007

Date of Last Submission: 7 November 2007

Delivered at: Sydney

Delivered on: 7 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Mr Moloney

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 21 July 2007, and amended on 12 October 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 $3,100.00.

3. Within seven (7) days of the making of these orders the first respondent’s solicitors write to the applicant by letter to both the address for service and the applicant’s home address, 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 2364 of 2007

SZLDE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I do not see any reason not to grant the leave and so I do grant leave.  I note the matters stated in the affidavit and the annexures to the effect that the applicant was served with a copy of the Minister's submissions in this matter, in accordance with orders made by Scarlett FM on 3 September 2007.  I note that two copies of the submissions were sent to the applicant: one was sent to the address for service, as notified in a Change of Address form provided by the applicant to the Court on 3 September 2007, and a copy was sent to the applicant's home address as provided in the application to the Court.  Both were sent by courier.

2. I am satisfied that the Minister has served the submissions on the applicant.  I also note part of the annexures to the affidavit include information as to the location of the Court. I note, of course, that the applicant had already attended this very Court on the first Court date.  I am satisfied both by the applicant's attendance at the first Court date and by what is asserted in the affidavit filed in Court of Ms Alison Lena Faron (“the affidavit” – annexures A and B),  that the applicant would have had clear notice of the final hearing of his matter having been set down today at 10:00am. When the matter was called at 10:00am, there was no appearance. When the matter was again called at 10:15 am, there was again no appearance.

3. I am satisfied that the applicant had notice of the matter today. The matter has now been called on three occasions and I note that it is now 20 minutes past the scheduled time, there has been no appearance and there continues to be no appearance by the applicant, so I am prepared to make the order sought by the Minister pursuant to r.13.03A(c) of the Federal Magistrate Court Rules 2001 (“the Rules”).

4. Firstly, it is appropriate that a cost order be made in this matter. I cannot see a reason that would argue against the making of such an order. Secondly, the amount sought is with reference to the work that has been done and I note that this is a final hearing today, is in my view a reasonable amount.

5. That amount covers two attendances by solicitor and the preparation of multiple copies of the Court Book. I note that there is an application and an amended application filed in this matter. The amended application appears to be in a pro forma, unfortunately regularly seen in this Court; nonetheless it would still cause the Minister to have done work to respond to both it and to the application. I note that the submissions filed by the Minister are comprehensive in that regard.

6. Noting now that it is 10:23am and again no appearance by the applicant, I proceed to make the orders for the reasons which I have already stated. Nothing has been heard from the applicant by way of seeking an adjournment or otherwise to explain the failure to attend today.

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

Associate:  S.Polley

Date:  15 November 2007