SZMUY v Minister for Immigration
[2008] FMCA 1688
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1688 |
| MIGRATION – Visa – protection visa – where Minister consents to orders even though applicant did not attend Court – certiorari and mandamus issued – model litigant. |
| Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | SZMUY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2561 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 December 2008 |
| Date of Last Submission: | 9 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal quashing the decision of the Refugee Review Tribunal dated 15 August 2008 and handed down on 26 August 2008;
A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine the application made to it for review of the decision of a Delegate of the First Respondent dated 3 June 2008 according to law;
The First Respondent pay the Applicant's costs fixed in the sum of $374.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2561 of 2008
| SZMUY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The application before the Court is an application for a review of a decision of the Refugee Review Tribunal. The application came before the Court for its first Court date on 27 October 2008. The Applicant attended and was not represented, but had the assistance of an interpreter in the Mandarin language.
Directions were made for hearing and the application was set down for final hearing today at 2.15 pm. However, the Applicant has not attended Court today.
In the circumstances, this would appear to be a very unwise decision by the Applicant because the lawyers for the Minister had formed the view that it was appropriate for the Minister to withdraw from these proceedings and had obtained those instructions from the Minister.
A set of consent orders was prepared and I am informed, forwarded to the Applicant for signing on 28 November. However, the Applicant has not returned the document to the Minister's solicitors duly signed and inexplicably has not attended Court today.
An interpreter in the Mandarin language is available today and would have been able to assist the Applicant in going through the Minute of consent orders had the Applicant turned up.
Quite clearly the Applicant is not going to attend. It is now well after the hour of 2.15 pm. According to the Court clock it is 2.29 pm. There is no explanation given as to why the Applicant has not attended.
The Federal Magistrates Court Rules 2001 set out a procedure to be followed if a party to a proceeding is absent from a hearing. The appropriate rule is r.13.03A and it sets out that the Court may do one or more of five different things. Under r.13.03A(c), if a party absent is an applicant, the Court may dismiss the application. Under r.13.03A(e), the Court may also proceed with the hearing generally or in relation to any claim for relief in the proceeding.
Ms Whittemore, who appears for the First Respondent Minister has informed me that her instructions are not to ask the Court to dismiss the application under r.13.03A(c) even though it would have been open to her to make such an application.
Instead, her instructions are to ask the Court to make the orders that would have been made by consent had the Applicant attended and executed the consent orders. In my view, there is power for the Court to act in this way under r.13.03A(e), that sub-rule allows the Court to proceed with the hearing generally, or in relation to any claim for relief in the proceeding.
The Applicant has filed an application which was filed on 13 October 2008. In that application he sets out three orders:
(1) the decision under review being set aside;
(2)the Second Respondent to reconsider the matter according to law;
(3) costs.
Quite clearly the Applicant is seeking orders in the nature of certiorari and mandamus. He is also seeking an order for costs.
The Minutes of Order that have been tendered to me today and marked as exhibit 1, in fact provide for just such orders for relief that the Applicant seeks in his original application. Quite clearly r.13.03A(e), which allows the Court to proceed with the hearing in relation to any claim for relief, would allow the Court to make orders granting the Applicant's wish for the three orders set out in his application.
In a note attached to the Minute of Orders it is said:
The First Respondent accepts that the application must be allowed on the basis that the Tribunal breached s.91R(3) of the Migration Act 1958 in light of the Full Federal Court decision SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105.
In light of that concession, I consider it is appropriate for me to make the orders that are sought and set out in the Minute of Orders.
I might comment that this is clearly an example of the Minister for Immigration & Citizenship acting in the position of a model litigant and the Court should note the Minister has chosen to act in that appropriate way.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L Coutman
Date: 17 December 2008
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