SZNEA v Minister for Immigration

[2009] FMCA 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEA v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 210

MIGRATION – No appearance – summary dismissal pursuant to r.13.03C(c) Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, rr.13.03C(c), 16.05

Applicant: SZNEA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 108 of 2009

Judgment of: Nicholls FM

Hearing date: 13 March 2009

Date of Last Submission: 13 March 2009

Delivered at: Sydney

Delivered on: 13 March 2009

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: No appearance

Appearance for the Respondents: Ms J Dinihan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 16 January 2009 be dismissed pursuant to r.13.03C(c) of the Federal Magistrates Court Rules 2001.

2. The applicant pay the first respondent’s costs set in the amount of $2,500.

3. Within seven (7) days the first respondent’s solicitors write to the applicant at the address for service notifying the applicant of the orders made today and of r.16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 108 of 2009

SZNEA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from transcript)

1. The time is now 9.50am, which is 20 minutes past the scheduled time for the hearing in this matter.  This was a matter involving an application made on 16 January 2009.  The applicant seeks review of the decision of the Refugee Review Tribunal made on 17 December 2008 affirming the decision of the delegate of the first respondent to refuse to grant a protection visa to the applicant. 

2. I note the applicant appeared at the first Court date in this matter on 4 February 2009 in person, and was assisted by an interpreter in the Mandarin language.  Short minutes of order were presented. On that occasion the Court made orders, including an order that the matter be set down for final hearing at 9.30am on 6 March 2009, which of course was last Friday. The Court was unable, subsequently, to hear the matter on that date, and the matter was rescheduled for today. I note on the file a letter sent by certified post to the applicant at the address for service notifying that the matter had been relisted for final hearing on Friday, 13 March 2009 at 9.30 am, in Court 7A, Level 7,88 Goulburn Street, John Madison Tower.

3. When the matter was called at 9.30am there was no appearance by the applicant. The matter was again called at 9.50am and there was still no appearance by the applicant. The first respondent seeks dismissal for want of appearance pursuant to r.13.03C(c) of the Federal Magistrates Court Rules 2001, and I agree that the matter should proceed to dismissal.  I am satisfied on the material before the Court that the applicant has had notice of the final hearing in this matter of the time, date and place, and nothing has been heard from the applicant, either by the Court’s registry or by the first respondent’s solicitors.

4. In the absence of any explanation for the failure to attend, and in the absence of any application for any adjournment, I cannot see any reason not to grant the first respondent’s application this morning that the matter be dismissed for want of appearance. I will make an order in that regard.

5. In the circumstances it is appropriate that a costs order be made.  There is nothing before me to show that it should not be made.  The first respondent clearly attended Court today in readiness to conduct the case.  Work has been done in preparing for the final hearing.  I note in particular the filing of a response and written submissions, preparation of multiple copies of the Court Book, and of course attendance by a solicitor on two occasions.  The amount sought, being $2,500, is in my view in all those circumstances a reasonable amount, and I will make the order in that amount.

6. For the sake of caution I will make an order as well in relation to r.16.05 of the Rules, although in saying that I note that this is an applicant who did not attend the interview before the delegate, and did not attend the hearing before the Tribunal. There seems to be an unfortunate pattern in not attending final, important hearings. Nonetheless it is appropriate that that order be made.

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

Associate:  A Douglas-Baker

Date:  17 March 2009