SZNTR v Minister for Immigration

[2009] FMCA 1181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1181

MIGRATION – Applicant failed to appear – dismissed in accordance with Rule 13.03C.

Applicant: SZNTR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1750 of 2009

Judgment of: Nicholls FM

Hearing date: 20 October 2009

Date of Last Submission: 20 October 2009

Delivered at: Sydney

Delivered on: 20 October 2009

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: -

Counsel for the Respondents: Ms A Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 23 July 2009 is dismissed pursuant to Rule 13.03C(i)(c) of the Federal Magistrate Court Rules; and

2. The applicant pay the first respondent’s costs set in the amount of $3300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1750 of 2009

SZNTR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 23 July 2009 under the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 June 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant appeared before the Court on the First Court Date in this matter, on 12 August 2009. A number of orders were made on that date. Two sets of orders are relevant today. The first is a set of orders providing an opportunity to the applicant to file either an amended application, written submissions or any other evidence in support of the application. To date, nothing has been filed by the applicant to indicate that she sought to press her claims before the Court.

3. It is particularly important to note, and the reason why what I have just said is significant, that the grounds of the application as they stand can only be described as being, certainly in relation to ground 1, in the barest of terms: nothing more than a general assertion of jurisdictional error.

4. Ground 2, which is a claim that the Tribunal failed to consider what the applicant claims to be her forced sterilisation, stands with a big question mark, given that, from the relevant documents that have been provided to the Court, it is not surprising that the Tribunal failed to consider such a claim, as no such claim appears ever to have been made, either to the Minister’s delegate or to the Tribunal.

5. The first thing that needs to be considered, in light of the Minister’s application that the matter be dismissed today pursuant to Rule 13.03C(i)(c), is that, despite opportunity in circumstances where the application is in both general, in one sense, and questionable, in another, terms, nothing further has been received from the applicant to indicate that she is interested in pressing the application before the Court. An application that needed some substance to be added to it.

6. The second issue of relevance is that, at the First Court Date, an order was made that the matter be set down for final hearing at 10.15 am, Thursday, 1 October 2009. For reasons dealing with the unavailability of the Court on that day, or the anticipated unavailability of the Court on that day, the hearing date was moved to 10.15 am Tuesday, 20 October 2009.

7. I am satisfied, with reference both to what is contained on the Court’s file and, of even greater importance, respondent’s exhibit 1 (“RE1”), being a letter from the Minister’s solicitors to the applicant sent to the address for service, that the applicant would have received the notice, given the date of the letter.

8. The notification was sent to what was said to be the applicant’s address for service. What is important, in these circumstances, is to note that the applicant at the time of application and at the time of the First Court Date as well, was held in immigration detention at the Villawood Immigration Detention Centre. There is, of course, upon change of address, an obligation on an applicant to notify the Court and the other party of any change in the address for service. Clearly, in this case, no notification has been received from the applicant. In any event, a letter was sent by the Court to the Villawood Detention Centre, dated 18 September 2009, addressed to the applicant at the address for service. There was “compliance”, or an attempt to notify the applicant at both the address for service, and by a letter sent by the Minister’s solicitors to what was subsequently understood to be the applicant’s residential address.

9. I am satisfied that the applicant has had reasonable notice of the matter being set down for a final hearing today. I note that it is now 20 minutes past the scheduled time. There has been no appearance by the applicant, nor has anything been heard from the applicant as to any inability to attend today. Nor has there been any application for a further adjournment. In all those circumstances it is appropriate, in my view, that the order that the Minister seeks today be made, and that the application be dismissed for want or lack of appearance by the applicant to prosecute or press her application.

Costs

1. In light of the indication that the Court will make an order dismissing the application, the Minister’s representative seeks an order that the applicant pay the Minister’s costs set in the amount of $3,300. I note first, as to whether it is appropriate that such an order be made, that there is nothing before the Court to argue against the making of such an order in the normal course. Second, as to the amount, this is a final hearing of this application. The Minister has come here through his legal representative to argue his case. There have been appearances by the Minister’s solicitor on two occasions. Written submissions have been prepared, filed and served. A formal response has been required and has also been filed. Multiple copies of the Court Book have been prepared and again, filed and served.

2. In all those circumstances I am satisfied that the amount sought is a reasonable amount, and will make the order in that amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: