SZMBD v Minister for Immigration
[2008] FMCA 853
•4 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 853 |
| MIGRATION – Visa – protection visa – non appearance by the applicant. |
| Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | SZMBD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 641 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 June 2008 |
| Date of Last Submission: | 4 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2008 |
REPRESENTATION
| Solicitors for the Applicant: | No Appearance |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed under Rule 13.03A of the Federal Magistrates Court Rules 2001 for non appearance by the applicant at the hearing.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5400.00.
The Applicant is to pay the Collector of Public Moneys of the Federal Magistrates Court the setting down fee of $419 fee within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 641 of 2008
| SZMBD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The substantive application before the Court is an application to review a decision of the Refugee Review Tribunal that was signed on 1 February and handed down on 21 February 2008. The Tribunal affirmed the decision of the delegate of the First Respondent, Minister for Immigration & Citizenship, not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court on 18 March 2008 by filing an application and an affidavit in support. The application came before the Court on its First Court date, 7 April 2008. The application was listed for hearing at 10.45 am on Thursday 15 May. Directions were made for preparation for hearing.
The applicant was referred to a lawyer on the legal advice panel and the lawyer, a Mr David Prince, confirmed in a letter to the Court dated 4 May 2008 that he had provided written advice to the applicant.
The applicant sought an adjournment of the hearing of 15 May. She sent a fax to the Court seeking an adjournment on the basis of her claim to be ill. She provided a medical certificate dated 13 May 2008 which gave no diagnosis of any illness but indicated that the applicant would not be fit for duty between 13 and 17 May 2008.
I note that the solicitor for the respondent expressed some scepticism at the time about the contents of the medical certificate, which was sketchy to say the least and opposed the adjournment. However, I took the view that I should take the certificate at face value notwithstanding its rather inadequate nature. I granted an adjournment. I adjourned the application until 10 am today. However, I also directed that the applicant was to be advised that no further adjournment would be granted. The sealed copy of the orders was posted out to the applicant.
The applicant has not attended Court today. She was called at five past the hour and again at 10.26 am. No one answered the call. No message has been received by the Court to the best of my knowledge indicating that the applicant is unwell or somehow hindered, delayed or prevented from attending Court today. There is just no appearance.
In the circumstances, it now seems highly unlikely that the applicant is going to attend Court. I have been asked by the solicitor for the respondent Minister to dismiss the application under the provisions of r.13.03A(c) of the Federal Magistrates Court rules due to the non attendance by the applicant at the hearing and I have been asked for an order for costs.
It appears to me that those orders are appropriate in the circumstances. The amount sought for costs is the sum of $5400. Ms Mafessanti has indicated to the Court that whilst this amount is a little higher than would normally be provided for in the Court scale, the matter is now on its third Court event, having been previously prepared for hearing and having been adjourned until today. I am certainly satisfied that the application has been prepared for hearing by the 1st respondent Minister. Court books have been prepared and supplied to the applicant, and a most comprehensive outline of submissions was prepared and filed on 9 May 2008. In all the circumstances I am satisfied that this is an appropriate matter to make an order for costs in favour of the Minister and I am satisfied that $5400 is an appropriate figure.
I note that the applicant has not paid the setting down fee of $419 despite being reminded to do so. I propose therefore to order that she is to pay that amount to the Collector of Public Monies at the Court's registry in Queens Square within 14 days. I will dismiss the application for non appearance by the applicant. I will order a transcript of my reasons. I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 24 June 2008
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