SZNFL v Minister for Immigration

[2009] FMCA 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 440

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – failure by the applicants to appear.

Federal Magistrates Court Rules 2001 (Cth)

First Applicant: SZNFL

Second Applicant: SZNFM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 270 of 2009

Judgment of: Driver FM

Hearing date: 11 May 2009

Delivered at: Sydney

Delivered on: 11 May 2009

REPRESENTATION

The First Applicant appeared by telephone

Solicitors for the Respondents: Ms K Hooper
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The Court directs that the transcript of today’s hearing is to be obtained.

2. The Court directs that the names of the applicants are not to appear on the transcript of proceedings.

3. The application is dismissed, pursuant to rule 13.03(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 270 of 2009

SZNFL

First Applicant

SZNFM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 5 February 2009 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The show cause application came before me for first court date directions on 26 February 2009. I made orders listing the matter for a show cause hearing today.

2. The applicants attended on that occasion with the assistance of a Mandarin interpreter. Both the application, and an information sheet completed by the applicants on that day, nominated an address for service in Wagga Wagga.

3. The Minister wrote to the applicants at that address by separate letters dated 2 March 2009. Those letters reminded the applicants of the court fixture today and warned them that if they did not attend, the application may be dismissed with costs for non appearance. I also note from the correspondence file that Mr Richard Scruby of counsel provided advice to the applicants with the assistance of a Mandarin interpreter on 22 April 2009.

4. Neither applicant attended when the matter was called today at 10.25am and 10.28am. The Court was successful in contacting the applicant husband on his mobile telephone. He claimed illness but gave no indication of illness from his voice. He also claimed, when prompted, that his wife was also sick although she was not with him. Neither the Minister's solicitors nor the Court received any notice of any difficulty encountered by the applicants in attending today's hearing. There is no medical evidence available.

5. It was obvious from the constant sound of traffic on the line to the applicant's mobile phone that he was not at home. I formed the view that he was using his mobile phone from a moving vehicle. He denied this. However, he was unable to tell me where he was or what he was doing with any clarity. He just claimed to be somewhere in Wagga Wagga.

6. I do not accept that either applicant is prevented by illness from attending today's hearing. I reject the applicant husband's explanation for that non attendance.

7. I will order that the application be dismissed, pursuant to rule 13.03(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

8. The application having been dismissed, the Minister seeks an order for costs in accordance with the Court scale in the sum of $2,935. The applicant husband did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

9. I note that the above orders were made in the absence of the applicant wife.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 May 2009