SZNZZ v Minister for Immigration

[2010] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 223

MIGRATION – Review of decision of Refugee Review Tribunal – no appearance of applicant – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)

Applicant: SZNZZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2707 of 2009

Judgment of: Nicholls FM

Hearing date: 4 March 2010

Date of Last Submission: 4 March 2010

Delivered at: Sydney

Delivered on: 4 March 2010

REPRESENTATION

Appearing for the Applicant: No appearance

Solicitors for the Applicant: -

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 6 November 2009 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2707 of 2009

SZNZZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made by the Minister that the application made to this Court on 6 November 2009, seeking review of the decision of the Refugee Review Tribunal made on 15 October 2009, which in turn affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant, be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) because of the absence of the applicant in proceedings today.

2. The application to the Court was initially made on 6 November 2009.  The applicant appeared at a first court date before a Registrar of this Court on 26 November 2009 in person. He was assisted by an interpreter in the Hindi language. At that time, the applicant appears to have signed short minutes of order, which subsequently became orders made by the Registrar, which included an order that the matter be set down for a final hearing today at 10.15am before Barnes FM.

3. I also take into account respondent’s exhibit 1 (“RE1”), which is a letter to the applicant dated 24 February 2010, reminding the applicant that the matter had been set down for hearing today, at 10.15am at John Madison Tower before Federal Magistrate Barnes. I am satisfied that the letter was sent to the address for service as provided by the applicant in his application.

4. Following the sending of that letter, the matter was transferred to my docket.

5. The matter was called this morning at both 10.15am and at 10.35am. On both occasions, the matter was called outside Federal Magistrate Barnes’ usual courtroom on level 5, level 6 (where other migration hearings are usually held), and outside this courtroom, at level 7 of this building (John Maddison Tower, 88 Goulburn Street, Sydney). There was no appearance by the applicant at either of those times, at any of those locations.

6. It is now well after half an hour after the time set down for the final hearing of this matter. There is still no appearance by the applicant. I also note that despite the opportunity provided to the applicant by orders made at the first court date, other than the application and the usual affidavit accompanying the application at that time, nothing further has been filed by the applicant in these proceedings.

7. In all, I am satisfied that the applicant had notice that his hearing was to proceed today. He has not appeared. I am satisfied further that nothing has been heard from the applicant advising of any difficulty in attending Court at the scheduled time, nor has any request for any adjournment been received by the Court. 

8. In all, therefore, I am satisfied that it is appropriate that the Minister’s application seeking dismissal, in the absence of the applicant, is appropriate and I will make that order.

Costs

1. I am also satisfied that I should consider the Minister’s application for an order for costs today. As a result of what is set out in “RE1”, I am satisfied that the applicant was on notice that if he failed to attend today, the Minister would be pressing the matter of costs. I will make an order for costs. There is nothing before the Court to argue against the making of such an order in the usual way.

2. The amount that the Minister seeks is an amount of $4,600. I take into account the work that has been done by the Minister’s solicitors in responding to the application. This involved the attendance at Court on at least two occasions by a solicitor, the filing of a formal response, instructions, briefing of counsel, and the filing of written submissions, which have been drafted by counsel. I also note the attendance by counsel at Court today, ready to respond to the application in the event of the applicant’s appearance.

3. In all, the amount sought by the Minister is, in my view, a reasonable amount and I will make the order as sought, that is, set in the sum of $4,600.

4. I did consider whether to make some order directing or requiring the Minister’s solicitors to write to the applicant notifying the applicant of the existence of r.16.05, as has been the practice in the past. However, I have latterly come to the view generally, and I am satisfied that it applies to this case, that the Court should not burden the Minister with such a course. It is a matter for the Minister whether he chooses to take any action in contacting the applicant.

5. My view is that once having filed an application, an applicant who then does absolutely nothing to press that application is left with the consequence that the Minister should not be further burdened with additional matters. Having said that, r.16.05 of the Federal Magistrates Court Rules exists. If the applicant were to “surface” at some future time, that rule is there for the applicant to use if he so wishes.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  26 March 2010