SZNKN v Minister for Immigration
[2009] FMCA 843
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 843 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no appearance of the applicant before the Court – application dismissed pursuant to rule 13.03C(1)(c). |
| Migration Act 1958 (Cth), s.476 Federal Magistrates Court Rules 2001, r.13.03C(1)(c) |
| Applicant: | SZNKN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 807 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 June 2009 |
| Date of Last Submission: | 4 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Mr Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 7 April 2009 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 807 of 2009
| SZNKN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made on 7 April 2009 under the Migration Act 1958 (Cth) (“the Act”). The application presumably seeks review of the decision of Refugee Review Tribunal (“the Tribunal”) made on 17 February 2009, which found that it did not have jurisdiction to review the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
I say “presumably” because, certainly, grounds one, three and four are directed to an attack on the delegate’s decision, a decision which I am satisfied I do not have jurisdiction to consider, given that it is a “primary decision”. (See s.476 of the Act.) The same can probably be said for ground two of the application.
Ground five, again, seeks to focus on the letter of notification of the delegate’s decision and it, at most, asserts error on the part of “Australia Post”. Again, this is a matter that is not within the jurisdiction of this Court.
In any event, when I have regard to order (2) sought by way of the application, it is open to infer that it is, in addition, an application seeking review of the Tribunal’s decision. Order (2) seeks that a writ of mandamus be issued in relation to the Tribunal to hear and determine the application according to law. I note again, however, that under the heading of “Decision Details”, it is the decision of the delegate that is identified and there is no reference to the Tribunal decision.
In any event, as a result of the second order sought by the applicant, I am satisfied on balance, in part at least, that this is an application seeking review of the decision of the Refugee Review Tribunal which found that it did not have jurisdiction to review the delegate’s decision.
On that basis, therefore, I note that I also have before me today an application which seeks that the application for judicial review to this Court be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 because of the non-attendance by the applicant when the matter was called.
I note that the applicant appeared in person at the first Court date in this matter on 29 April 2009. He was assisted by an interpreter, on that occasion, in the Mandarin language. Short minutes of order were prepared. The applicant signed the short minutes of order, and consented to orders being made that included order (5). This reads as follows:
“ 5. The application is listed for final hearing on 4 June 2009 at 10:15 am before Federal Magistrate Nicholls at Court 7A, Level 7, John Maddison Tower, 88 Golden Street, Sydney.”
I note that this is the same venue at which the first Court date took place.
I am satisfied that the applicant did have notice of his matter being listed for final hearing today. Nothing has been heard from the applicant in the intervening period. In spite of opportunities offered to him, no amended application or written submissions have been filed, nor has any request for an adjournment of the hearing today been put before the Court. Nor has there been any explanation for the applicant’s failure to attend.
It is now 10.40am – well after the scheduled time for the hearing, which was 10.15am.
As I said, the applicant did not appear when the matter was first called and did not appear when the matter was subsequently called after a short adjournment. It is now twenty-five minutes past the scheduled hour. There is still no appearance by the applicant and it is appropriate, in my view, in these circumstances, that the matter be dismissed.
For whatever reason, the absence of the applicant, which is unexplained before the Court, could lead to an inference, particularly in light of the fact that the applicant has not submitted any further documentation to the Court as was available to him, that he seeks not to prosecute his application.
But, whatever the situation, the absence of the applicant from the hearing today is the critical factor relevant to the rule that I am being asked to apply. I am satisfied as to the notice of the hearing having been given, satisfied the applicant has not sought any adjournment, or put any explanation for the failure to attend before the Court. On that basis, it is appropriate that the matter be dismissed pursuant to r.13.03C(1)(c).
I also have an application as to costs in this matter to be fixed in the amount of $3,500. In my view, it is appropriate that such an order be made. There is nothing before the Court to argue against the making of such an order, which would be made in the normal course of events. As to the amount, I am satisfied that it is reasonable in the circumstances, bearing in mind the work that has been done by the Minister’s solicitors in responding to the application. I note, in particular, the preparation, filing, and serving of multiple copies of the Court Book, the formal response, written submissions, and the preparation of the affidavit, which was filed in this matter, and attendances at Court on at least two occasions by a solicitor representing the Minister.
In all, therefore, the amount of $3,500 is a reasonable amount and I will make an order in that amount.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 28 August 2009
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