SZLSB v Minister for Immigration

[2008] FMCA 299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 299

MIGRATION – Visa – protection visa – Refugee review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – where applicant did not attend Federal Magistrates Court hearing.

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

Applicant: SZLSB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3706 of 2007

Judgment of: Scarlett FM

Hearing date: 25 February 2008

Date of Last Submission: 25 February 2008

Delivered at: Sydney

Delivered on: 25 February 2008

REPRESENTATION

Counsel for the Applicant: Nil

The Applicant: No appearance by the applicant

Appearance for the Respondent: Ms Warner-Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) due to the non-attendance by the applicant at Court.

2. The applicant is to pay the first respondent's costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3706 of 2007

SZLSB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The substantive application before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal decision was signed on 18^th July 2007 and handed down on 7^th August 2007.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a protection visa.

2. On 30^th November 2007 the applicant commenced proceedings by filing an application and an affidavit in support.  The proceedings came before the Court on the first Court date on 14^th January 2008.  The applicant did not attend Court. The solicitors for the Minister did attend.  I made directions for hearing and listed the application for final hearing today at 2.15 pm.  The applicant has not appeared today.  He was called at 2.19 pm and again at 2.39 pm; each time he has not appeared.

3. I am informed by Ms Warner-Knight, who appears for the Minister, that she has taken the following steps to inform the applicant of the hearing.  First, on 14^th January 2008, the day the matter first came before the Court, she wrote to the applicant at both his residential address and his post office box address advising him that the application had been listed for hearing in this Court at 2.15 pm today.  The letter went on to say:

   If you fail to attend and have not notified the Court, please note that orders will be sought that your application be dismissed with costs.

4. The solicitors for the Minister wrote again to the applicant on

   
   23^rd January 2008

   enclosing, by way of service, a copy of the relevant documents that the Green Book or Court Book - that letter went on to say:

   We remind you that you must attend your final hearing before Scarlett FM at 2.15 pm, Monday, 25^th February 2008 in the Federal Magistrates Court of Australia at John Madison Tower, Level 7, 88 Goulburn Street, Sydney.  If you fail to attend and have not notified the Court, please note that orders will be sought that your application be dismissed with costs.

5. The solicitors for the Minister continued to prepare the matter and on 14^th February 2008 filed a written outline of submissions.  I have had attended in Court, copies of letters of 14^th February 2008 sent to the applicant at both his street address and his post office box number, enclosing a copy of the written outline of submissions and again reminding the applicant that he must attend the final hearing at 2.15 pm today.

6. With respect, I do not see what further steps the Minister's lawyers could reasonably be expected to take to inform the applicant that the matter was listed for hearing.  Quite clearly, the Minister has prepared the application for hearing on a final basis, working on the basis that the applicant would eventually attend and the matter would need to be heard in full. Unfortunately, the applicant has not appeared.  No messages have been received from the applicant or any person on his behalf, indicating that the applicant has been hindered, delayed or prevented from attending Court by reason of illness, injury or other emergency.

7. The applicant has just not appeared. The matter could well have proceeded today. A Mandarin interpreter had been ordered and arrived punctually, ready to assist the applicant for the hearing. There has been no sign of the applicant whatsoever and no explanation. I propose to dismiss the application under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules. There is an application for costs in the sum of $4,200.00. This is an appropriate matter for costs and the figure sought, in my view, is reasonable in all of the circumstances. I propose to make those orders.

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

Associate:  Delphine Govin

Date: 6 March 2008