SZNGG v Minister for Immigration

[2009] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 314

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant – application dismissed.

Federal Magistrates Court Rules2001, r.13.03C

Applicant: SZNGG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 382 of 2009

Judgment of: Scarlett FM

Hearing date: 6 April 2009

Date of Last Submission: 6 April 2009

Delivered at: Sydney

Delivered on: 6 April 2009

REPRESENTATION

The Applicant: No Appearance

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Application is dismissed under Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 due to the non-attendance of the Applicant.

2. The Applicant is to pay the First Respondent’s costs fixed in the sim of $3300.00.

3. The Applicant is to pay to the Collector of Public Moneys, Federal Magistrates Court, Level 16, Law Courts Building, Queens Square Sydney NSW 2000 the setting down of $447.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 382 of 2009

SZNGG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The application before the Court is an application to review a decision of the Refugee Review Tribunal. The applicant filed an application and an affidavit in support on 18 February 2009. The application was given a first Court date of 9 March 2009 but the applicant did not attend.

2. I made directions for the matter to go to hearing and listed the application for final hearing today at 2.15 pm.  The applicant was advised by mail of the time, place and date of the hearing.  The applicant was forwarded a copy of the directions made by the Court.  The applicant has not attended Court today.  The applicant has not filed any amended application or any outline of submissions.

3. The Minister's lawyers filed a Court Book and have prepared the matter for hearing; an outline of submissions which is quite comprehensive was filed on 30 March 2009. Clearly the matter is ready for hearing by the first respondent, if the applicant were here to proceed with the case. But the applicant has not attended. The matter was called at 2.17 pm and there was no appearance by or on behalf of the applicant. I stood the matter down. I called the matter again at 2.40 pm. The applicant was called three times outside the Court and there was no appearance by the applicant or anyone on the applicant's behalf.

4. No messages have been received from the Court indicating that the applicant has been prevented, delayed or hindered from attending Court today due to illness, injury or any other emergency.  There is just no contact from the applicant whatsoever.

5. Ms Hooper, who appears for the Minister today, has filed in Court an affidavit of Alison Lena Faron affirmed today in which Ms Faron deposes that she served a copy of the first respondent's written submissions on the applicant on 30 March 2009. This was done by express post to the applicant's postal address and the affidavit also says that a copy was forwarded to the applicant's residential address by courier.

6. Notwithstanding that there has been no communication from the applicant, the letter sent with the material reminds the applicant of the date, time and place of the hearing and before whom the matter is to be heard.  The letter goes on to say,

   If you do not attend we may seek to have the matter dismissed with costs for non-appearance.

7. In my view the letter from the minister is perfectly clear and it is hardly surprising that the minister's lawyers in the circumstances should seek to have the application dismissed due to the applicant's non-appearance at the hearing.  It is also an appropriate matter for costs.  An amount of $3300 is sought which clearly reflects the time and effort put into the preparation of the matter for hearing and is below the amount prescribed in the scale of the Federal Magistrates Court Rules.

8. I note from the Court file that the setting down fee of $447 has not been paid.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  9 April 2009