SZOIW v Minister for Immigration
[2011] FMCA 123
•1 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 123 |
| MIGRATION – PRACTICE & PROCEDURE – Refugee Review Tribunal – non attendance by applicant at the first court event – dismissal pursuant to Reg 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Migration Act 1958 (Cth), ss.424A, 477 Federal Magistrates Court Rules 2001 (Cth), Regulation 13.03C(1)(c) |
| Applicant: | SZOIW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 255 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 March 2011 |
| Date of Last Submission: | 1 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2011 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondents: | Mr J. Pinder, DLP Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 255 of 2011
| SZOIW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order that the proceeding before this court, commenced by way of application, filed on 16 February 2011, be dismissed pursuant to Reg 13.03C of the Federal Magistrates Court Rules 2001 (Cth) for the reason that the applicant has failed to attend today’s first court date.
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) which affirmed the delegate’s decision to refuse the applicant’s claim for a protection visa.
The initiating application in this Court was filed on 16 February 2011 together with an application for an extension of time to bring the proceeding pursuant to s.477 of the Migration Act (“the Act”).
The application filed on 16 February 2011 appears to have been signed by the applicant on 15 February 2011. The application clearly identifies today’s date and time at 10 am as the time and date for the first court date hearing and clearly provides the address of the courts in this building.
It is now 10.45am. The applicant has been called on at least two occasions, the last just a moment ago. There has been no appearance by the applicant this morning. I am told that the Registry received a telephone call yesterday from somebody purporting to be the applicant saying that he wished to have the matter transferred to Perth. However, there has been no written communication received by the Registry or by this Court or by the first respondent or the first respondent’s solicitors either from the applicant or anyone on behalf of the applicant seeking an adjournment or seeking a transfer of this matter to Perth.
I am satisfied, in the circumstances, that the applicant was aware of today’s scheduled first court date hearing and, for whatever reason, has chosen not to attend. I also note that there has been no further document filed by, or on behalf, of the applicant in this proceeding since the initiating application and supporting affidavit annexing the Tribunal’s decision record.
The applicant’s explanation for his delay in filing his application for judicial review in excess of the 35 day period provided by section 477(1) of the Act is that the applicant had to travel from Perth to Sydney; that the Tribunal’s decision is very long; and, that it took the applicant’s translator a long time to translate it.
I do not accept any of the applicant’s present explanations as reasonable to explain the applicant’s delay in failing to comply with s.477(1) of the Act to file his application for judicial review of the Tribunal hearing 35 days after notification to him of the Tribunal’s decision. It does not take 35 days to travel from Perth to Sydney or to translate the Tribunal’s decision record of 37 pages.
In such circumstances, the applicant’s application for an extension of time is likely to be unsuccessful.
Even if the applicant’s application for an extension of time was successful, the grounds of the applicant’s application for judicial review are largely unparticularised and make bare assertions that are more in the nature of a disagreement with the findings and conclusions of the Tribunal. They allege that the Tribunal failed to invite the applicant to comment on certain information. The particulars of the information provided do not disclose information that enliven any obligation under section 424A of the Act.
In the circumstances, I am satisfied that the orders sought by the first respondent this morning are appropriate. Accordingly, I order that proceeding before this Court commenced by way of application, filed 16 February 2011, should be dismissed with costs by reason of the failure of the applicant to appear at today’s scheduled first court date.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 8 March 2011
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