SZLUM v Minister for Immigration

[2008] FMCA 719

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 719

MIGRATION – Application for Review of decision of Refugee Review Tribunal – no appearance by applicant – application dismissed for non-appearance.

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

Applicant: SZLUM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3923 of 2007

Judgment of: Nicholls FM

Hearing date: 23 May 2008

Date of Last Submission: 23 May 2008

Delivered at: Sydney

Delivered on: 23 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Mr P Snell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 20 December 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 $3,000.

3. Within seven (7) days of the making of these orders, the first respondent’s solicitors write to the applicant by letter addressed to the address for service 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 3923 of 2007

SZLUM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I am satisfied, in all the circumstances, that the applicant has received proper and reasonable notice of the final hearing of this matter. I note that at the first Court date in this matter, the matter was listed for final hearing on this date, the difference being that at that time it was set down for 11.30am, but the three letters which I have marked as exhibits (“RE 1”, “RE 2” and RE 3”) sent variously on 5 May 2008 and 6 May 2008 to both the applicant’s address for service and home address, in my view, provided more than a reasonable period for the applicant to have noted the change in time to 10.00am.

2. Nothing has been heard from the applicant to advise of any inability to attend today at the scheduled time and there has been no request for an adjournment from the applicant. In all of the circumstances, I am satisfied that the applicant has had proper notice of the time, date and place of the final hearing, that she was on notice of that final hearing and was also on notice that the first respondent would move for dismissal of her application if she did not appear. In all the circumstances, it is appropriate that I dismiss the application for want of appearance.

3. The first respondent seeks an order for costs. It is appropriate, in my view, that such an order be made. There is nothing before the Court to show that such an order should not be made. The applicant made her application to the Court, as is her right, and attended at the first Court date. I note that at that date opportunities were given to the applicant to file an amended application and to file any further evidence. In particular I note the opportunity to file an amended application given that the stated grounds of the originating application can only be described as being in the most general of terms and not having any detail or particularity. The applicant’s case would have greatly benefited if she had taken up the opportunity to have put on an amended application giving particulars. The applicant in fact appears to have done nothing to press her case since the attendance at the first Court date, at which time it is my practice with applicants who put on applications in very general terms to invite them to consider an amended application giving particulars as being advantageous to their claims.

4. Nothing has been heard from the applicant and no action has been taken by the applicant in furtherance of her application before the Court, but nonetheless the first respondent has been put in the situation of having to respond to the application as it was. I note the work done by the first respondent’s legal representatives, including the filing of multiple copies of the Court Book, a response, the attendance on two occasions by a solicitor, the filing of an outline of submissions and plainly preparation by the first respondent’s legal representatives for the hearing today. Had the applicant appeared and not been successful the first respondent could have sought an amount up to $5,000 under the relevant Schedule to the Rules of this Court.

5. I am not bound by what is in that Schedule but I am guided by what is reasonable in all the circumstances. In my view, there is a range in applying the concept of reasonableness in matters of this type, and while the amount sought by the first respondent is a considerable amount of money ($3,000) it is nonetheless, in my view, within the range of what I would consider as reasonable given the work that has been done by the first respondent’s legal representatives. Therefore, I will make the order in the amount sought.

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

Associate:  A Douglas-Baker

Date:  2 June 2008