SZNFE v Minister for Immigration

[2009] FMCA 1058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFE v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1058

MIGRATION – Application to review decision of Refugee Review Tribunal – application to transfer matter to Federal Court of Australia – no appearance by applicant – application dismissed.

Federal Magistrates Court Rules, r.13.03C

Applicant: SZNFE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2133 of 2009

Judgment of: Barnes FM

Hearing date: 22 October 2009

Delivered at: Sydney

Delivered on: 22 October 2009

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. There being no appearance by the applicant, the application for review filed on 2 September 2009 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

2. There being no appearance by the applicant, the applications for transfer of proceedings to the Federal Court of Australia filed on 28 September 2009 and 20 October 2009 are dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

3. In relation to the application for review, the applicant pay the costs of the first respondent fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2133 of 2009

SZNFE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The application was filed on 2 September 2009. The applicant attended a directions hearing held by a registrar of this court on 17 September 2009 with the assistance of a Korean interpreter. On that day orders were made for the filing of documents and the matter was listed for hearing today at 10.15 am. The applicant has filed a considerable number of documents, most of which are described as affidavits, and also a written outline of submissions, a list of authorities, an amended application and most recently, two applications for transfer of the proceedings from this court to the Federal Court of Australia.

2. I am told that the applicant is in Villawood Detention Centre. Counsel for the first respondent advised that escort officers at the detention centre had advised that the applicant refused to attend the hearing and tendered an email to this effect. The applicant was not present this morning when the matter was called. Nor was there any other appearance on his behalf. I also note that on 19 October 2009 the solicitors for the first respondent wrote to the applicant enclosing the first respondents’ outline of submissions and noting the hearing date, time and place and advising him that if he did not attend the hearing, either in person or by legal representative, they were instructed to seek to have the matter dismissed with costs.

3. As indicated, there is no appearance by the applicant. In those circumstances the first respondent seeks that the court not proceed with the hearing of both the application for transfer of proceedings and/or the review, but rather that both applications be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules on the basis of the non-appearance of the applicant. I consider that that is the appropriate approach to take. It means that if there is a legitimate reason for the applicant’s non‑appearance today, there is the opportunity for him to seek reinstatement of both the substantive application and the application for transfer pursuant to the Federal Magistrates Court Rules at which time, however, he would have to attend court either in person or, if he sufficiently sought to do so, by way of video appearance or by way of representation.

4. In light of the applicant’s failure to appear today I consider that it is appropriate to make the orders sought by the first respondent for dismissal of the application filed on 2 September 2009 for review of the decision of the Tribunal and also for dismissal of the application for transfer filed on 20 October 2009.  I note in that respect that a similar document seeking transfer had been filed on 28 September 2009, albeit in the form of what was described as an affidavit.  Insofar as that is a separate application, it is also dismissed by the orders made today.

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks costs of the proceedings in the sum of $5,500.  The application having been dismissed it is appropriate that such a costs order should be made.  The amount sought is appropriate having regard to the nature of this and other matters.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  27 October 2009