SZNHL v Minister for Immigration

[2009] FMCA 522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 522

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 (Cth), r.13.03C(1)(c)

Applicant: SZNHL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 497 of 2009

Judgment of: Emmett FM

Hearing date: 28 May 2009

Date of Last Submission: 28 May 2009

Delivered at: Sydney

Delivered on: 28 May 2009

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondent: Ms L. Klegg

Solicitors for the Respondent: Mr G. Cooper, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 497 of 2009

SZNHL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to 13.03(c)(1) of the Federal Magistrates Court Rules 2001 that the proceeding before this Court, commenced by way of application filed on 4 March 2009, be dismissed by reason of the failure of the applicant to appear at today's scheduled hearing. 

2. In support of the application, Counsel for the first respondent, Ms Klegg, tendered a letter from the first respondent's solicitors addressed to the applicant at the only address provided by the applicant, both for receiving mail and his home address, dated 18 May 2009 and sent by Express Post.  The letter confirmed that the matter was listed for hearing today at 10.15am and informed the applicant that if he did not attend the hearing, the respondent would seek orders from the Court that his matter be dismissed and that he pay the first respondent’s legal costs of the proceeding.

3. I note that the applicant attended a directions hearing before me on 18 March 2009, on which occasion the applicant was given leave to file and serve an amended application and any additional evidence by way of affidavit by 23 April 2009, and to file and serve written submissions 14 days before the hearing. The directions made on that day set the matter down for final hearing today at 10.15am. On that occasion the applicant was informed that if there was no appearance by or on behalf of the applicant at today's scheduled hearing, the hearing may proceed in the absence of the applicant and the proceeding be dismissed without further notice. The directions made on that day were interpreted for the applicant.

4. The applicant was also provided on that occasion with the contact details of legal services providers, and the details of interpreting and translation services.  That information was provided to the applicant in the applicant's own language. 

5. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. There has been no communication received, either by the first respondent's solicitors or the Court from the applicant seeking an adjournment of today's proceeding.

6. At 10.25am, attempts were made by the first respondent's solicitor to contact the applicant on the applicant's identified mobile telephone number, and counsel for the first respondent informed the Court that there was no answer on that telephone number.  The first respondent's solicitor made that telephone call in the presence of the interpreter who was ready and able to assist with any communication to the applicant in the event that the applicant had answered.

7. It is now 10.45am.  There has been no appearance by the applicant.  In the circumstances, I am satisfied that the applicant was aware of today's hearing and, for whatever reason, has chosen not to attend. 

8. Accordingly, the orders sought by the first respondent are appropriate.

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

Deputy Associate:  E. Maconachie

Date:  5 June 2009