SZMXU v Minister for Immigration

[2009] FMCA 776

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 776

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 (Cth) r.13.03C(1)(c)

Applicant: SZMXU

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2937 of 2008

Judgment of: Emmett FM

Hearing date: 5 August 2009

Date of Last Submission: 5 August 2009

Delivered at: Sydney

Delivered on: 5 August 2009

REPRESENTATION

There was no appearance by or on behalf of the Applicant

Counsel for the Respondent: MR G. Kennett

Solicitors for the Respondent: MS E. Baggett, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2937 of 2008

SZMXU

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The first respondent seek an order pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 for the dismissal of the applicant’s proceeding before this Court, commenced by way of application filed on 12 November 2008, by reason of the applicant’s failure to appear at this morning’s scheduled hearing. 

2. The matter first came before this court on 4 December 2008.  However, the matter was set down for hearing today by order of the Court, made 12 June 2009, at a directions hearing before me.  On that occasion, the applicant appeared in person with the assistance of an Arabic interpreter.  The order clearly stated that the matter was set down for final hearing today at 10.15am in this Court room before me.  The orders also informed the applicant that, if there was no appearance by him at the scheduled hearing, his application may be dismissed without further notice.  The orders were interpreted for the applicant at the directions hearing in my presence. 

3. In support of the application, the first respondent tendered two letters, both dated 16 June 2009, addressed to the applicant at the applicant’s last notified address for service and the applicant’s prior address.  Those letters together were marked Exhibit 1R on the application this morning.  Those letters are in identical terms and confirm that the applicant’s application is listed for hearing today at 10.15am.  The letters also informed the applicant that if he does not attend the hearing today the first respondent may seek to have the matter dismissed with costs for non-appearance. 

4. I am informed by counsel for the first respondent, Mr Kennett, that there has been no communication received by or on behalf of the applicant from the first respondent or the first respondent’s lawyers.  There has been no communication received from the applicant to the Court or to my chambers. 

5. In the circumstances, I am satisfied that the applicant is aware of today’s scheduled hearing and, for whatever reason, has chosen not to attend.  I note that the time is now 10.44am and the applicant has been called on at least three occasions outside Court; the last occasion being about 10 minutes ago, before the matter commenced. 

6. Accordingly, I am satisfied that the order sought by the first respondent is appropriate and I order that the applicant’s proceeding, commenced by way of application filed on 12 November 2008, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 with costs.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  17 August 2009