SZOCY v Minister for Immigration
[2010] FMCA 442
•23 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 442 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no appearance of applicant – application dismissed for non appearance. |
| Migration Act 1958 (Cth), s.477 |
| Federal Magistrates Court Rules 2001 (Cth), r.13.03 |
| Applicant: | SZOCY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 172 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 April 2010 |
| Date of Last Submission: | 23 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2010 |
REPRESENTATION
| The Applicant: | No appearance |
| Appearing for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time made on 1 February 2010 is dismissed pursuant to r.13.03C(1)(d) of the Federal Magistrates Court Rules 2001 (Cth).
The application made on 1 February 2010 pursuant to s.476 of the Migration Act 1958 (Cth) is otherwise dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 172 of 2010
| SZOCY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Before me are two applications made by the applicant. The first is an application made on 1 February 2010 under the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of the Refugee Review Tribunal signed on 31 January 2008, and apparently handed down on 19 February 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
The second application seeks an extension of time pursuant to s.477(2) of the Act within which the first application may be competently made to this Court.
In this matter the applicant appeared at the First Court Date on 17 March 2010. He appeared in person and was assisted by an interpreter in the Mandarin language. A solicitor employed by the Minister’s solicitors appeared on that date. Amongst other matters, orders were made that both applications, that is, the substantive application and the extension of time application, were listed for hearing before me at 9.30am on 23 April 2010.
I was satisfied at the time that the applicant understood the orders that were made on that day.
When the matter was called outside the Courtroom on 23 April 2010 at 9.30am, there was no appearance by the applicant. I adjourned for 20 minutes. The matter was again called at approximately 9.50am. Again, there was no appearance by the applicant. There was still no appearance by the applicant after 10am.
I have before me an application from the Minister’s solicitor, Ms Warner Knight, who appeared for the Minister today, seeking that the application for an extension of time be dismissed pursuant to r.13.03C(1)(d) of the Federal Magistrates Court Rules 2001 (Cth). That is, dismissal of an interlocutory application where there has been no appearance of the applicant. Further, she seeks that if the Court were minded to do so, the substantive application be dismissed for lack of competence.
Turning, first to the extension of time, the necessity for the applicant to seek an extension of time derives from a Tribunal decision that was made on 19 February 2008. Because of the relevant amendment to the Act introducing the current version of s.477, which deals with the time limits within which applications need to be made to this Court, the effective date arising from the transitional arrangements is 15 March 2009, which was under the transitional arrangements and was the date of commencement of the current version of s.477 (s.2, item 2 of sch.2 of the Migration Legislation Amendment Act (No. 1) 2009 (Cth)).
Given the provisions of 477(1), the application to the Court must be made within 35 days. I accept the Minister’s submission, that the last day for the filing of the application would have been 18 April 2009. The application made on 1 February 2010 is therefore about ten months out of time. This necessitated the applicant then asking the Court to proceed to consider, pursuant to s.477(2), extending the time, essentially in the interests of the administration of justice.
Turning, then, to the extension of time matter, I note first that the applicant would have had notice of the matter being set down for hearing because, as I said, I was satisfied that he understood, on 17 March 2010, that the matter was listed at the time, date and place to which I have already referred. I also take into account the Minister’s exhibits 1 and 2 (“RE1” and “RE2”), and note in particular that each of the exhibits was at least sent to each of the addresses given as the addresses for service.
I am satisfied that the applicant had reasonable notice of the matter being set down on 23 April 2010. No explanation was provided to the Court or to the Minister’s solicitors in relation to any difficulty to attend. Nor has any adjournment been sought.
In all the circumstances, it is appropriate that the Minister’s first application be granted. I will make an order dismissing the application for an extension of time pursuant to r.13.03C(1)(d).
This then leaves the substantive application. It is, in the circumstances as I have already outlined, clearly out of time given the provisions of s.477(1) of the Act. The application to the Court was made well outside of the 35 day limit. The applicant has, for whatever reason, chosen not to attend the hearing, and nor has he otherwise conveyed any difficulty in attending before the Court to argue for any extension.
Given that I am minded to dismiss the application for an extension of time in any event, what remains is that the substantive application made on 1 February is clearly incompetent. The matter should therefore be otherwise dismissed.
Costs
I am satisfied that an order for costs should be made in this matter. It is of concern when I note, with reference to the Court Book, that this is an applicant who made an application for a protection visa where nothing was put in support of that application to the Minister’s department beyond what was in the application form itself, other than copies of the applicant’s passport. The applicant was unsuccessful. He applied for review to the Tribunal, was invited to a hearing. For whatever reason he did not attend.
Nothing further was put before the Tribunal. The applicant has made one appearance before this Court at the First Court Date and then, without explanation, has not attended. The Minister has been put to legal expense in this matter, as Ms Warner Knight quite correctly submitted, in preparing for the possibility of a final hearing. This was a matter that was discussed at the First Court Date. I am satisfied that the applicant should have been on notice as to the extent of the work that would have been required by the Minister’s solicitors.
Therefore, there is nothing that I can see to argue against the making of the costs order in the normal course of events.
As to the amount, while it is clearly at the higher end of the scale of the relevant Schedule to the Rules, it is in my view a reasonable amount when regard is had to the work that was required to be done and, in fact, has been done by the Minister’s solicitors in responding to the applications.
In that regard, I note two appearances by solicitors, preparation of the Court Book, filing and serving of a formal Response, preparation of written submissions which canvassed a number of different areas of the law, and at least two letters to the applicant. In all the circumstances, I am satisfied that the amount sought is a reasonable amount and I will make that order.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 29 June 2010
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