SZLRP v Minister for Immigration

[2008] FMCA 1033

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRP v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1033

MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear.

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

Applicant: SZLRP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3640 of 2007

Judgment of: Emmett FM

Hearing date: 21 July 2008

Date of Last Submission: 21 July 2008

Delivered at: Sydney

Delivered on: 21 July 2008

REPRESENTATION

There was no appearance by or on behalf of the Applicant

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Ms N. Tondl, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3640 of 2007

SZLRP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 that the proceeding before this Court, commenced by way of application on 26 November 2007, be dismissed. 

2. I note the applicant attended a directions hearing before the Court on 13 December 2007.  On this occasion the applicant was given leave to file and serve an amended application and any additional evidence upon which he intended to rely by 21 February 2008 and directed to file and serve submissions 14 days prior to the hearing.  The matter was set down for final hearing on 4 June 2008 at 10.15am in this Court room before me. 

3. I further note that there was no further document filed by the applicant or on behalf of the applicant pursuant to the directions given by the Court on 13 December 2007. 

4. On 3 June 2008 a letter was written by my chambers to the applicant and the first respondent informing them that the hearing had been rescheduled to today at 10.15am.  I note that a letter sent to the applicant was addressed to the only address provided by the applicant on his application for receiving mail and for service. 

5. In support of the application this morning, the first respondent tendered a letter, marked Exhibit 1R, from the Australian Government Solicitor to the applicant, addressed to the only address provided by the applicant, informing the applicant of the rescheduling of the hearing to today.  Exhibit 1R also informed the applicant that if he failed to appear today that orders would be sought that his application be dismissed with costs and without further notice.  

6. There has been no communication from the applicant with either my chambers or the solicitors for the first respondent at all since 13 December 2007 and certainly no contact seeking the adjournment of today's hearing either by the applicant or on his behalf. 

7. In the circumstances, I am satisfied that the applicant knew of today's hearing or should have known and, for whatever reason, has chosen not to appear. I am satisfied that the order sought by the first respondent is appropriate and I order that the proceeding commenced by way of application, filed 26 November 2007 be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court rules.

   RECORDED  :   NOT TRANSCRIBED

   ORDERS DELIVERED

8. I direct the first respondent to notify the applicant at the address identified by the applicant of these orders and to provide to the applicant a copy of r.16.05 of the Federal Magistrates Court Rules 2001. 

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

Deputy Associate:  E. Maconachie

Date:  24 July 2008