SZNQN v Minister for Immigration

[2009] FMCA 1020

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1020

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: SZNQN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1328 of 2009

Judgment of: Emmett FM

Hearing date: 13 October 2009

Date of Last Submission: 13 October 2009

Delivered at: Sydney

Delivered on: 13 October 2009

REPRESENTATION

There was no appearance by or on behalf of the Applicant

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Ms K. Whittemore, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1328 of 2009

SZNQN

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 proceeding before this Court commenced by way of application, filed on 3 June 2009, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support of the application the first respondent tendered a letter, dated 18 September 2009, from the first respondent’s solicitors to the applicant. The letter is addressed to the applicant at the address provided by the applicant to the Court when the applicant completed the information sheet on 16 June 2009 at a first directions hearing before me. That letter was marked Exhibit 1R.

3. Exhibit 1R enclosed the first respondent’s submissions and confirmed today’s hearing date and time and provided the applicant with the Court’s address. The letter also informed the applicant that, if the applicant did not attend today’s scheduled hearing, the respondent would seek orders from the Court that his proceeding be dismissed and that he pay the first respondent’s legal costs of the proceeding.

4. At the first directions hearing, directions were made by me, inter alia, that the applicant have leave to file and serve an amended application and any further additional evidence by way of affidavit upon which the applicant intended to rely, by 28 July 2009 and to file and serve written submissions 14 days before the hearing. The matter on that occasion was set down for hearing on 24 September 2009 at 10.15am in this courtroom before me.

5. The applicant signed a copy of those Orders after they had been interpreted for the applicant as I read them to the applicant. On that occasion, the applicant was also given the opportunity to participate in the Court’s panel advice scheme. I note that on 3 July 2009 the applicant met with a panel adviser and received written advice from that adviser on 8 July 2009.

6. On 7 August 2009, the Court wrote to the applicant and the first respondent informing them that the hearing on 24 September 2009 was rescheduled to today at 10.15am. The letter was sent to the applicant both at the address identified by the applicant on the information sheet and also to the Villawood Detention Centre, the latter being the address identified by the applicant on the initiating application filed on 3 June 2009.

7. There has been no document filed by, or on behalf of, the applicant in accordance with the Orders made by the court on 16 June 2009.  There has been no communication received from, or on behalf of, the applicant either by this Court, the first respondent or the first respondent’s lawyers.

8. In the circumstances, I am satisfied that the applicant knew, or ought to have known, of the scheduled hearing this morning. 

9. Accordingly, I am satisfied that the order sought by the first respondent is appropriate.

   RECORDED  :  NOT TRANSCRIBED

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

Deputy Associate:  E. Maconachie

Date:  21 October 2009