SZLHK v Minister for Immigration

[2007] FMCA 2094

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHK v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2094

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant.

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

Applicant: SZLHK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2795 of 2007

Judgment of: Barnes FM

Hearing date: 11 December 2007

Delivered at: Sydney

Delivered on: 11 December 2007

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

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

2. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2795 of 2007

SZLHK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant sought review by application filed in this Court on 11 September 2007. 

2. At a directions hearing the matter was listed for hearing today at 2.15pm.  However, the matter was brought back before the Court for directions on 29 November 2007.  The legal representative for the first respondent tendered a notice of discontinuance said to have been signed by the applicant (who was in the Villawood Detention Centre), which had not been accepted for filing in the registry.  It does not bear any reference to a file name or number or identifying details other than the name of the applicant and a signature and date. 

3. The applicant was not present.  It was indicated to me from the bar table that he had not wished to attend.  In those circumstances the matter was left in the list for final hearing today.  I made an order on that date that if the applicant wished to participate in the hearing (but not attend Court) the Court would be willing to hear the matter by video link or other electronic method. 

4. An affidavit of Angela Manson was sworn and filed on 10 December 2007.  I accept on the basis of that affidavit and the annexures to it that the applicant signed a request for removal from Australia on 6 November 2007 which includes an indication that he wished to advise this Court, the Federal Court and the High Court that he wished voluntarily to be removed, to discontinue any legal action that involved the first respondent and that he understood that this meant that if he had a matter before the court, the court would cease consideration of it.  In addition, the affidavit of Ms Manson attested, and an extract from the Departmental movement database was annexed, that the applicant left Australia on 5 December 2007 at 2.15 pm.  He was not present today when the matter was called.

5. In those circumstances, it is sought that the application be dismissed for non-appearance pursuant to r.13.03A(c) of the Federal Magistrates Court Rules and that there be no order as to costs. I consider it appropriate to make such orders.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  19 December 2007