SZOLI v Minister for Immigration
[2010] FMCA 531
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 531 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear. |
| Migration Act 1958 (Cth), ss.477; 477(1); 477(2) Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Applicant: | SZOLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1202 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitor for the Respondent: | Mr G. Johnson, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1202 of 2010
| SZOLI |
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 31 May 2010, be dismissed for the applicant’s failure to appear at this morning’s scheduled hearing of an application for an extension of time.
On 9 June 2010 the first respondent filed a Response seeking an order that the application, filed on 31 May 2010, be dismissed as incompetent.
The application before this Court, filed on 31 May 2010, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 August 2010. The application was not filed within 35 days of the date of that decision, as required by s.477(1) of the Migration Act 1958 (Cth) (“the Act”). In the application seeking judicial review, the applicant sought an extension of time pursuant to s.477(2) of the Act in which to file that application.
The initiating application, filed on 31 May 2010, was set down for a first Court date on 25 June 2010. On that occasion there was no appearance by the applicant.
Orders were made by a Registrar of this Court that:
a)the applicant file and serve any evidence and submissions in support of the application for an extension of time by 30 June 2010;
b)the first respondent file and serve any evidence and submissions opposing the extension of time by 30 June 2010; and,
c)the application for an extension of time was set down for hearing on 1 July 2010 at 11.00am in this Court before me.
The first respondent seeks an order today that the proceeding before this Court, commenced by way of application for an extension of time, be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). The solicitor for the first respondent, Mr Johnson, read two affidavits in support. One affidavit was from Michelle Elizabeth Stone, affirmed 30 June 2010, which annexed a copy of a letter, dated 28 June 2010, sent to the applicant at the address identified by the applicant on the initiating application, filed on 31 May 2010. This letter notified the applicant that the matter was listed for an interlocutory hearing today at 11.00am and informed the applicant that if the applicant did not attend, the first respondent may seek to have the matter dismissed with costs for failure to appear.
The second affidavit is an affidavit of Carly Michelle Paradis, affirmed 30 June 2010. That affidavit annexes a copy of a letter dated 25 June 2010, again addressed to the applicant at the address identified by the applicant on the initiating process. This letter enclosed, by way of service, a copy of the sealed orders of the Court, dated 25 June 2010.
There have been no further documents filed by the applicant in accordance with the directions made by the Registrar on 25 June 2010 or otherwise, either in support of the application for extension of time or in support of the application generally.
I note that the applicant’s address, identified on the affidavit of the applicant, sworn/affirmed 31 May 2010 and annexing a copy of the Tribunal’s decision record, has a slightly different spelling of the street where the applicant claims to live; that spelling being “Gyamea Street” and the spelling on the application being “Gayamea St”. I note that Narrabundah appears to be misspelt on both the applicant’s affidavit and the application.
I am informed by the solicitor for the first respondent, Mr Johnson, that there is in fact a Gymea Street in Narrabundah in the ACT. However, Mr Johnson informed the Court that an attempt had been made to serve an affidavit of Gregory Joseph Johnson, affirmed 30 June 2010 and filed in this Court on 30 June 2010, on the applicant at the address in “Gymea Street, Narrabundah” in the ACT. There is no affidavit of service or attempted service in respect of that affidavit and Mr Johnson has informed the Court that, in fact, whilst service was attempted it was not effected.
There has been no communication received by the Court or by the first respondent or the first respondent’s solicitors from the applicant seeking any adjournment of the proceeding or for any other reason.
I am satisfied that all reasonable attempts have been made to inform the applicant of the hearing this morning of the applicant’s application for an extension of time pursuant to s.477 of the Act and, in the circumstances, the orders sought by the first respondent are appropriate.
Accordingly, I order that the applicant’s application for an extension of time pursuant to s.477 of the Act is dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing. I note that, in the circumstances, the applicant’s proceeding, commenced by way of application filed on 31 May 2010, is incompetent.
I direct the first respondent to notify the applicant forthwith at the address identified by the applicant on the application filed 31 May 2010 and also at the address at Gymea Street, Narrabundah in the ACT.
RECORDED : NOT TRANSCRIBED
I order that the applicant pay the costs of the first respondent fixed in the amount of $2,300. I note that such sum is in accordance with the costs schedule of this Court.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Acting Associate:
Date: 21 July 2010
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