SZLWZ v Minister for Immigration

[2008] FMCA 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 457

MIGRATION – Review of decision of Refugee Review Tribunal – no appearance at the First Court Date – dismissal for want of appearance.

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

Applicant: SZLWZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 99 of 2008

Judgment of: Nicholls FM

Hearing date: 9 April 2008

Date of Last Submission: 9 April 2008

Delivered at: Sydney

Delivered on: 9 April 2008

REPRESENTATION

Appearance for the Applicant: No appearance

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms N Tondl

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application 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 $350.

3. Within seven (7) days of the making of these orders the Minister’s solicitors write to the applicant at the address for service and notify 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 99 of 2008

SZLWZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. [This is an application by the first respondent seeking dismissal of this matter pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that there is no appearance by the applicant in this matter.]

2. I note that the Court generally has the power to take this course of action at the First Court Date.  I am satisfied that as at the date of making the application to the Court (15 January 2008) the applicant was on notice of the time and date of the First Court Date, being 9.30am on Wednesday 9 April 2008.  Nothing has been heard from the applicant to advise of any inability to attend; no request for an adjournment has been received.

3. I note Respondent’s Exhibit 1 (“RE 1”), which is a letter from the first respondent’s solicitors addressed to the applicant.  But I do not rely on that letter given that I do not have before me evidence of that letter having been sent.  Nor was the first respondent’s representative able to assist the Court as to whether the letter (“RE 1”) had in fact been sent.  While an inference may be drawn of the letter having been sent, I choose not to draw that inference and rely on what the applicant would have been notified as at the time of the making of the application as to the First Court Date in this matter.

4. I note also the decision record of the Tribunal which has been put before the Court by the applicant at the time of the making of the application before the Court, and note that the applicant did not attend the Tribunal hearing.  But I note that only by way of background.

5. The applicant has not appeared and there is no explanation for the failure to appear.  There has been no request for an adjournment.  Given that I am satisfied that the applicant had notice, I am prepared to make the order that the first respondent seeks.

6. In my view, it is appropriate that an order for costs be made in this matter. There is nothing before the Court that would argue against the making of such an order. As to the amount, I note that there has now been an appearance by a solicitor for the first respondent in this matter, notices of appearance and a response have been filed by the respondents, and there has been preparation for the First Court Date today by way of proposed short minutes of order. Therefore I am satisfied that the amount sought is a reasonable amount, and will make that order. I think it is appropriate also that I make the usual order in relation to Rule 16.05 of the Rules.

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

Associate:  A Douglas-Baker

Date:  10 April 2008