SZNEO v Minister for Immigration - [2009] FMCA 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 386

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, rr.13.03C(1)(c), 16.05

Applicant:

SZNEO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 193 of 2009

Judgment of:

Emmett FM

Hearing date:

3 April 2009

Date of Last Submission:

3 April 2009

Delivered at:

Sydney

Delivered on:

3 April 2009

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent:

Ms P. Nandagopal, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 193 of 2009

SZNEO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The first respondent seeks an order that the proceeding before this Court be dismissed by reason of the applicant's failure to appear at this morning's directions hearing pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
In support of the application the first respondent relies upon two letters sent by the first respondent to the applicant. Copies of those letters have been tendered and are marked Exhibits “2R” and “3R”.
Exhibit “2R” is a letter dated 24 March 2009 sent to the applicant at the address identified by the applicant in the initiating application filed on 27 January 2009 as her home address. Exhibit “3R” is a letter in identical terms, also dated 24 March 2009, and sent to the applicant at an address provided by the applicant on her initiating application as her address for receiving mail. The applicant completed a change of address form at the first court date on 2 March 2009, changing her address for receiving mail to her home address. I note that the terms of the letters are as follows:
“Dear Madam
[Applicant] and Minister for Immigration and Citizenship and Refugee Review Tribunal: Federal Magistrates Court Action No. SYG193/2009
We act on behalf of the respondents in this matter.
We note that this matter has been listed in the Federal Magistrates Court at John Maddison Tower, 88 Goulburn Street, Sydney for a Directions Hearing on 3 April, 2009 at 10 AM.
Information for unrepresented applicants:
It is important that you confirm the location of your hearing as soon as you arrive.
If you do not attend we may seek to have the matter dismissed (with costs) for non-appearance.”
The applicant attended a first directions hearing before this Court on 2 March 2009. On that occasion the applicant was given leave to file and serve an amended application and any affidavit containing additional evidence to be relied upon including any transcript of the Refugee Review Tribunal (“Tribunal”) hearing. The applicant was directed to give notice to the first respondent and the Court if the applicant was intending to rely on tapes of the Tribunal hearing. The applicant was directed to file and serve written submissions in support of the application. The matter was set down for final hearing on 20 March 2009. No documents were filed by or on behalf of the applicant in accordance with those directions or otherwise.
The applicant was offered an opportunity at the first court date to participate in the Court's panel legal advice scheme and receive legal advice. Although, I note that the order dated 2 March 2009 contains a note that the applicant had completed a notice to unrepresented applicants to participate in the legal advice scheme, New South Wales, I am satisfied that that notation should have been omitted from the order. The Court explained to the applicant on that occasion that she had the opportunity to meet with a lawyer and receive free legal advice and the applicant elected not to participate in the scheme.
At the first court date, the Court also provided to the applicant the contact details of various legal services providers together with the contact details of translation and interpreting services.
The applicant attended the scheduled hearing before this Court on 20 March 2009. The applicant was unrepresented at that hearing. An issue was raised by the Court on that occasion about the way in which the findings and reasons of the Tribunal were expressed, in particular, a corrigendum provided by the Tribunal one week before the hearing before this Court and more than two months after the decision of the Tribunal. The Court explored its concerns with the solicitor for the first respondent, Mr Johnson at the hearing.
The matter was adjourned at the final hearing date on 20 March 2009 to enable the first respondent to obtain further instructions and the matter was stood over until today for further directions pending the outcome of instructions provided to Mr Johnson.
The Court explained to the applicant that, if the matter was adjourned and the applicant was ultimately unsuccessful, there may be increased costs consequences for the applicant. The applicant had already been provided with a copy of the costs schedule of this Court at the first court date at which time it was explained to the applicant that if she was unsuccessful she may be ordered to pay costs in accordance with that schedule. It was also explained by the Court to the applicant on that occasion that if those Court costs remained unpaid they became a debt to the Commonwealth of Australia and, as such, that would significantly affect the applicant's ability to obtain any other type of visa or re-enter Australia.
The applicant confirmed to the Court at the conclusion of the hearing on 20 March 2009 that she was agreeable to the matter being adjourned until today to enable Mr Johnson to obtain further instructions. Mr Johnson notified my chambers yesterday that the First Respondent wished to continue to defend the matter.
In the circumstances, I am more than satisfied that the applicant was aware that it was necessary for her to attend Court this morning at 10.00am and I note that there has been no communication received by either the Court or the first respondent's solicitors from the applicant seeking any adjournment of today's directions hearing. I note that Exhibits “2R” and “3R” made clear to the applicant that if she did not attend today that the first respondent may seek to have her matter dismissed by reason of her failure to appear.
Rule 13.03C(1)(c) makes clear that if a party to a proceeding is absent from a hearing, including a first court date, the Court may, if the absent party is an applicant, dismiss the application. It is now 11.05am and the matter has been called on at least three occasions outside and there has been no appearance by or on behalf of the applicant.
In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate and the proceeding before this Court to commenced by way of application filed on 27 January 2009 is dismissed.
ORDERS DELIVERED
I direct the first respondent to notify the applicant of the orders made this morning and provide to the applicant a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 24 April 2009