SZMIU v Minister for Immigration

[2008] FMCA 1473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1473

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – where applicant failed to attend Federal Magistrates Court hearing.

Migration Act 1958 (Cth), s.426A
Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: SZMIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1425 of 2008

Judgment of: Scarlett FM

Hearing date: 20 October 2008

Date of Last Submission: 20 October 2008

Delivered at: Sydney

Delivered on: 20 October 2008

REPRESENTATION

The Applicant: No appearance

Solicitors for the Applicant: Not legally represented

Appearance for the Respondents: Mr Snell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to rule 13.03A(c) due to the failure of the applicant to attend court for the final hearing.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1425 of 2008

SZMIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. I propose to dismiss the application under provisions of r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the Applicant's failure to attend Court for the final hearing.

2. The application before the Court is an application for review of a decision of the Refugee Review Tribunal that was signed on 18^th April 2008 and handed down on 13^th May, confirming a decision not to grant the Applicant a protection (Class XA) visa. I note that the Applicant did not attend the Tribunal hearing and the Tribunal proceeded to make a decision exercising it's powers under s.426A of the Migration Act.

3. The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 4^th June 2008. On 30^th June 2008, which was the first Court date, Orchiston FM listed the matter for final hearing and made the appropriate directions.

4. The matter was originally due to be heard on 13 this month.  However, it was adjourned until today, a week later.  Unfortunately the Applicant has not appeared, the Applicant was called at 10:16 am and again on 10:45 am.  Mr Snell who appears for the Minister has tendered a letter dated 10^th October 2008 addressed to the Applicant reminding him of the hearing date and place.

5. Nevertheless, the Applicant has not appeared, no message has been received from the Applicant or from anyone on his behalf, indicating that he has been hindered, delayed or prevented from attending Court due to illness, injury or other emergency.  The Applicant has just not attended.

6. In my view it is appropriate to dismiss the application under the provisions of r.13.03A(c) of the Federal Magistrates Court Rules and it is also appropriate to make an Order for costs in favour of the First Respondent Minister.

7. I note that the Minister's lawyers have prepared the case for hearing and appear to me to be, in all respects, ready to commence the matter on a final basis.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  24 October 2008