SZNLM v Minister for Immigration

[2009] FMCA 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 426

MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of failure of the applicant to appear.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Applicant: SZNLM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 863 of 2009

Judgment of: Emmett FM

Hearing date: 28 April 2009

Date of Last Submission: 28 April 2009

Delivered at: Sydney

Delivered on: 28 April 2009

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitor for the Respondents: Ms K. Whittemore, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 863 of 2009

SZNLM

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 that the proceedings before this Court, commenced by way of application filed on 14 April 2009, be dismissed by reason of the failure of the applicant to appear at the first court date this afternoon. 

2. The first respondent solicitor, Ms Whittemore, tendered a letter in support of the application.  The letter is dated 16 April 2009 and is from the first respondent’s solicitors addressed to the applicant at the only address identified by the applicant on the application.  That letter is marked Exhibit 1R on the first respondent's application this afternoon.  Exhibit 1R enclosed a notice of appearance and provided the contact details of legal services providers.  Exhibit 1R also informed the applicant that, if the applicant did not attend the scheduled directions hearing this afternoon, the first respondent would seek to have the application dismissed with costs. 

3. There has been no communication received from the applicant or anyone on behalf of the applicant either by this court or by the first respondent or the first respondent's solicitors.  The application filed by the applicant on 14 April 2009 purports to be signed by the applicant.  It clearly has the time and date for the first court date as 2.15pm this afternoon.  It is now 2.32pm and there has been no appearance by the applicant.  The applicant has been called on three occasions outside the Court. 

4. In the circumstances, I am satisfied that the applicant was aware or should have been aware of the first court date this afternoon and for whatever reason has chosen not to attend.  Accordingly, I am satisfied that the order sought by the first respondent is appropriate. 

5. The proceeding before this court, commenced by way of application filed on 14 April 2009, should be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of a failure of the applicant to appear at today's first court date. 

6. The first respondent should send a copy of today’s orders to the applicant, together with a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  8 May 2009