SZMCO v Minister for Immigration

[2008] FMCA 731

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCO v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 731

MIGRATION – Review of decision of Refugee Review Tribunal – dismissal for non-appearance of Applicant pursuant to s.13.03A of the Federal Magistrates Court Rules 2001.

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

Applicant: SZMCO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 775 of 2008

Judgment of: Emmett FM

Hearing date: 29 May 2008

Date of Last Submission: 29 May 2008

Delivered at: Sydney

Delivered on: 29 May 2008

REPRESENTATION

Applicant in person assisted by a Punjabi interpreter

Counsel for the Respondent: Mr H. Bevan

Solicitors for the Respondent: Ms C. Kelso, Australian Government Solicitors

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 2 April 2008, is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 by reason of the failure of the applicant to appear at today’s hearing;

2. The applicant pay the costs of the first respondent fixed in the amount of $4,000;

NOTE: The application for costs is in accordance with the relevant costs schedule in the Federal Magistrates Court Rules;

1. The first respondent is directed to provide forthwith to the applicant, at the applicant's last known address a copy of these Orders, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 775 of 2008

SZMCO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order from this Court pursuant to r.13.03A of the Federal Magistrates Court Rules2001 that the proceeding before this Court commenced by way of application filed on 2 April 2008 be dismissed by reason of the failure of the applicant to appear at today's hearing. That reason is identified in r.13.03A(c) and provides that:

   “If a party to a proceeding is absent from a hearing (including a first court date) the Court may do one or more of the following:

   …

   (c) if the party absent is an applicant – dismiss the application; …”

2. The applicant appeared before this Court on 16 April 2008 at which time this matter was set down for hearing on 19 June 2008.  However, due to the Court's ability to bring the hearing of this matter forward and, being satisfied that the timetable provided by the Court on 16 April 2008, as far as the applicant goes, would not have been disturbed by bringing the matter forward, the Court notified the applicant by letter dated 14 May 2008 that the proceeding had been relisted for today at 10.15am.  That letter was sent to the applicant by express post at the address identified by him in a Notice of Change of Address for Service filed on 16 April 2008 which provided for 26 Merrigal Street, Griffith 2680. 

3. At the first court date it was explained to the applicant by this Court that, in accordance with Order 14, he must file and serve any change of address for service or contact details immediately upon any such change.  That Order was interpreted for the applicant's benefit in the presence of the Court, it having been first read by the Court to the applicant. 

4. In support of the application, the first respondent tendered a fax received from the applicant on 23 April 2008 purporting to be a Notice of Change of Address for Service and confirming that the applicant's residential address was still 26 Merrigal Street, Griffith, however, providing a new postal address.  That document was marked Exhibit 1R and was not filed with the Court.  The only address provided to the Court for correspondence with the applicant was 26 Merrigal Street, Griffith.  It is relevant and significant that the applicant confirmed in Exhibit 1R that his residential address of 26 Merrigal Street, Griffith, had not changed as at 23 April 2008. 

5. Neither the first respondent nor the Court has been notified of any other change of residential address.  However, for the sake of completeness, counsel for the first respondent, Mr Bevan, took the Court to the bundle of relevant documents, which was tendered and marked Exhibit 2R on the first respondent's application, where the applicant identified as his residential address 26 Merrigal Street, Griffith, both on his protection visa application form and his application to the Refugee Review Tribunal for review of the decision of the delegate of the first respondent to refuse him a protection visa. 

6. It was drawn to the Court's attention and I note that the Refugee ReviewTribunal noted in its decision record that on 27 November 2007 it sent a letter to the applicant at the address, 26 Marygale Street, Griffith, an address which the Refugee ReviewTribunal says was confirmed with the applicant on 11 October 2007, however, the letter was returned to the Refugee Review Tribunal marked "Left address/unknown". 

7. However, the two most recent documents, being Exhibit 1R and the Notice of Change of Address for Service filed by the applicant in Court on 16 April 2008, make it clear that the applicant's information to the Court and the first respondent is that his residential address is 26 Merrigal Street, Griffith. 

8. In the circumstances, I am satisfied that the applicant should have been aware of today's proceeding, in that he was duly notified at the address filed by him with this Court as to his address for service at 26 Merrigal Street, Griffith.  Accordingly, I am satisfied that the applicant for whatever reason has chosen not to attend.  The application of the first respondent is appropriate in the circumstances.

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:  25 June 2008