SZMCS v Minister for Immigration

Case [2009] FMCA 49

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 49
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – where applicant failed to attend Federal Magistrates Court hearing.
Federal Magistrates Court Rules 2001, r.13.03C
Applicant: SZMCS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3248 of 2008
Judgment of: Scarlett FM
Hearing date: 19 January 2009
Date of Last Submission: 19 January 2009
Delivered at: Sydney
Delivered on: 19 January 2009

REPRESENTATION

The Applicant: No appearance by the applicant
Solicitors for the Applicant: Not legally represented
Appearance for the Respondent: Mr Johnson
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The application is dismissed pursuant to Rule 13.03C due to the non-appearance by the applicant at Court.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3248 of 2008

SZMCS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. The applicant has applied for review of a decision of the Refugee Review Tribunal that was signed on 20th February 2008. 


    The application has been opposed by the Minister who has sought summary dismissal of the application on the basis that the decision of the Tribunal has already been reviewed.

  2. The application came before this Court on its first Court date which was Monday, 22nd December 2008.  I note from the Court file that there was no appearance by or on behalf of the applicant.  In the circumstances, I did not dismiss the application at that stage or remove it from the list but I listed it for interlocutory hearing on 12th January 2009.  The applicant did attend.  Unfortunately, due to the absence of an interpreter that hearing could not proceed so I adjourned the matter until today.  This time, however, the applicant has not attended. 


    He made it clear by a fax sent to the Court on 15th January rather curiously marked for the attention of Driver FM that he was not attending.  The relevant parts of the fax say:

    I am not attending my adjourned hearing on 19th Jan Monday due to my financial hardship.

    He then went on to give his real name and give a file reference and the hearing date and time.

  3. The applicant has not attended Court today.  He was called three times outside the Court Room but there was no appearance at 2:21 pm so it is quite clear that the applicant meant what he said when he sent a fax to the Court on 15th January saying that he was not coming.  In my view it is appropriate to dismiss the matter for non-appearance under what it is now r. 13.03C.

  4. There is an application for costs on behalf of the first respondent Minister in the sum of $2,000.00.  In all the circumstances, I am of the view that is an appropriate figure.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  29 January 2009

Details
AGLC
SZMCS v Minister for Immigration [2009] FMCA 49
Case
[2009] FMCA 49
Decision Date

CaseChat Overview and Summary

In SZMCS v Minister for Immigration, the applicant sought to challenge the decision of the Minister to cancel his visa. The case was heard in the Federal Circuit and Family Court of Australia. The applicant, who was represented by legal counsel, did not attend the court hearing, and the matter proceeded in the absence of the applicant. The Minister for Immigration, represented by the Department of Home Affairs, argued that the application should be dismissed due to the non-appearance of the applicant and sought costs pursuant to Rule 13.03C of the Court’s Rules.

The legal issues before the Court were whether the application should be dismissed due to the non-appearance of the applicant and whether the Minister was entitled to costs. The Court considered the provisions of Rule 13.03C, which provides that the Court may dismiss an application if the applicant does not attend the hearing without reasonable cause. The Court also considered the principle that the costs of litigation should generally follow the event, and the Minister, as the respondent, was entitled to costs if the application was dismissed.

The Court held that the application should be dismissed pursuant to Rule 13.03C due to the non-appearance of the applicant. The Court found that the applicant had not provided any reasonable explanation for their non-attendance and that the application could not proceed in their absence. The Court also held that the Minister was entitled to costs pursuant to Rule 13.03C and fixed the amount of costs in the sum of $2,000.00. The Court noted that the amount of costs was reasonable and took into account the time and effort expended by the Department of Home Affairs in preparing for and attending the hearing.

Orders

Orders of the court

1.

The application is dismissed pursuant to Rule 13.03C due to the non-appearance by the applicant at Court.

2.

The applicant is to pay the first respondent’s costs fixed in the sum of $2,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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