SZMSU v Minister for Immigration

[2008] FMCA 1639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1639

MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear.

Federal Magistrates Court Rules 2001, r.13.03C(1)(c)

Applicant: SZMSU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2354 of 2008

Judgment of: Emmett FM

Hearing date: 3 December 2008

Date of Last Submission: 3 December 2008

Delivered at: Sydney

Delivered on: 3 December 2008

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitor for the Respondent: Ms B. Anniwell, Australian Government Soliticor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2354 of 2008

SZMSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceedings before this Court, commenced by way of application filed on 10 September 2008, be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at today's scheduled hearing. 

RECORDED : NOT TRANSCRIBED

1. It is now 10.34am.  The applicant has been called on three occasions outside the Court room and there is no appearance by or on behalf of the applicant. 

2. The applicant filed a letter on 28 November 2008 which inter alia requests a Mandarin interpreter but makes no mention of an application for an adjournment of today's scheduled hearing.  It is in the following terms:

   “Dear Judge of Federal Magistrates Court of Australia,

   First I thank you for sending me a free legal solicitor for my case.  He met me today at hid [sic] office to give me advice for my case.  He said after reading my file, he couldn’t find jurisdictional errors in the decision of the Refugee Review Tribunal and it is impossible for me to win at the Court.  He didn’t intend to write amended application for me.  But I will implore you could give me a chance by returning the matter to the Tribunal for further consideration because I can’t return to China.  I will be deprived of my belief in Falun Gong and persecuted by the Chinese government. 

   I request that you could arrange me a Mandarin interpreter.”

3. I do not understand the Applicant’s letter to be seeking any adjournment of today’s hearing or seeking to provide an explanation for his failure to appear. 

4. I note that the letter was not served on the respondents. 

5. In support of the application this morning the first respondent relies upon a letter dated 25 November 2008, on Australian Government Solicitor letterhead and addressed to the applicant at the only address for service or receiving mail provided by the applicant.  That document is marked Exhibit 1R.  The letter reminds the applicant that the matter is listed for hearing at 10.15am today in this Courtroom before me.  The letter also informs the applicant that if he does not appear at the hearing that orders may be sought and his application dismissed with costs without further notice. 

6. The applicant appeared before this Court on 7 October 2008, at which time his proceeding was set down for hearing today at 10.15am.  The Orders and directions made on that date included: providing to the applicant leave to file and serve an amended application; filing additional evidence by way of affidavit; and, filing and serving written submissions.  No document has been filed by or on behalf of the applicant since that date. 

7. Further, I note that the grounds of the application make bare assertions and do not disclose an error capable of review by this Court.  None of the ground are supported by particulars and the applicant, as stated above in these Reasons, has not filed any amended application giving complete particulars of each ground of review relied upon in accordance with direction 3 of the Orders made on 7 October 2008. 

8. In the circumstances, I am satisfied that the applicant is, or should be, aware of today's hearing and, for whatever reason, has chosen not to attend. 

9. Accordingly, the order sought by the first respondent is appropriate and I Order that the proceeding before this Court, commenced by way of application filed on 10 September 2008, is dismissed with costs. 

10. I note that the applicant participated in the New South Wales RRT Legal Advice Scheme and received advice in accordance with that scheme on 24 November 2008. 

RECORDED : NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  18 December 2008