SZNUD v Minister for Immigration
[2009] FMCA 1180
•19 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNUD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1180 |
| MIGRATION – Applicant failed to appear – disposal by summary judgment. |
| Federal Magistrates Court Rules 2001 (Cth), rule 13.03C, 16.05 |
| Applicant: | SZNUD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1802 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 October 2009 |
| Date of Last Submission: | 19 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2009 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Solicitors for the Applicant: | - |
| Counsel for the Respondents: | Mr Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 28 July 2009 is dismissed pursuant to rule 13.03(1)(c) of the Federal Magistrate Court Rules.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1802 of 2009
| SZNUD |
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 28 July 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 July 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
The applicant attended at the first court date in this matter on
12 August 2009. Amongst other things, the matter was set down for final hearing on Thursday, 24 September 2009. For reason of the unavailability of the Court subsequently to sit on that day, it was determined that the matter would then be heard on Monday, 19 October 2009 at 2.15pm.
The address for service provided by the applicant, and which remains the address for service, given that no other notification has been filed in Court by the applicant consistent with the Rules of this Court, is given as “15 Birmingham Avenue, Villawood”, which is the address of the Villawood Immigration Detention Centre. It appears that the applicant at some time was subsequently released from the Centre, but no new address for service has been filed.
The Minister’s legal representatives have appeared in Court today and the Minister is represented by Mr Knackstredt of counsel, who has asked the Court, in light of the failure of the applicant to attend at the scheduled time, and indeed I note it is now over 20 minutes past the schedule time and there was still no appearance by the applicant when the matter was called just now, that this matter be determined by dismissing the application pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The first thing is whether I should proceed today. I am satisfied as to two things:
1)That the applicant has not filed any further address for service beyond that contained in the application to the Court. Parties to proceedings before this Court are required by the Rules to notify the Court of any change of address. That has not occurred.
2)That the applicant did have notice of the change in the date and time of the final hearing of this matter by way of the documents that are set out, and to which I collectively will refer to as respondents exhibit 1 (“RE1”):
i)First, advice from the Minister’s solicitors, received by this Court, as to the applicant’s release from the Villawood Immigration Detention Centre, and an address that had been provided subsequently to the Minister’s solicitors by the applicant.
ii)Second, a letter dated 18 September 2009 from the Court to the applicant at that address, notifying him of the change in the time and date of the hearing, that was sent by express post at that time. (The period provided was reasonable in the circumstances.)
What we are left with today is that the matter has been set down for final hearing at 2.15pm today. It is now 2.39pm. There has been no appearance by the applicant. In the circumstances it is appropriate that I proceed. I cannot see, in all those circumstances, any reason not to agree to the application made today by the Minister’s counsel. There is nothing from the applicant to seek any further adjournment of the hearing date. Nor has anything been heard from the applicant by way of any difficulty in appearing today.
In those circumstances, it is appropriate that I proceed. I will make that order, and note also that there is an obligation on parties, wherever possible, to comply with the Rules. It may be that this applicant thought that he had discharged whatever obligation he had in notifying of any change of address by contacting the Minister’s solicitors, and so no critical or adverse inference is drawn from any failure to provide the Court with any address for service. Other than to note that in those circumstances it was appropriate for the Court staff to proceed in the way that they did, and to send the letter to the only possible, and latest, address available to them.
The futility of sending it to the previously notified address for service is exemplified by what occurred with the legal advisor, who had been appointed pursuant to the “RRT Legal Advice Panel”, who attempted to contact the applicant by sending a letter to the Villawood Detention Centre, only to be advised that the applicant was no longer at that address.
I will make that order.
The other issue is whether, in the absence of the applicant, in making that order, I should make an order directing the Minister to advise the applicant of the existence of Rule 16.05. I am of the view that it is not necessary to make such an order, or to require the Minister’s solicitors to notify the applicant of the existence of that Rule. If the applicant were to come forward at any future time he would no doubt be made aware of the existence of that Rule and, given that this Court is served by the Federal Court Registry, if he were to seek to take the matter further in that Court, he would be directed back to this Court through Rule 16.05. I do not see the need to make any order requiring the Minister’s solicitors to write to the applicant.
Costs
I also have an application for an order as to costs in this matter, fixed in the amount of $5,600. In my view, in all the circumstances, it is appropriate that such an order be made. As already said, the applicant has not appeared today, and therefore has not put anything before the Court to argue against the making of such an order. But I cannot otherwise see that any successful argument can be made against the making of such an order in the normal course of events.
As to the amount, I note first that it is under the amount that is set out in the relevant Schedule to the Rules of this Court. I take the view that I am not bound by what is set out in that Schedule, but that it is a good and useful guide as to what may be reasonable in a general sense. But specifically, and in the circumstances of this case, I am satisfied that the amount sought is a reasonable amount. I note in particular the multiple copies of the Court Book that have been prepared, filed and served in this matter, the formal Response by the Minister, the written submissions drafted by counsel, appearances in Court by the Minister’s solicitors, and of course the appearance by counsel today, presumably ready, willing and able to meet whatever the applicant may have sought to press.
I note that the amount is reasonable, notwithstanding that the grounds of the application are expressed in what can only be described as the barest and most general of terms. Nonetheless, the Minister’s legal representatives were required to respond and have responded in as fulsome and comprehensive a way as circumstances required them to do. The amount sought in my view is a reasonable amount, and I will make an order for costs in that amount.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 15 January 2010
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