SZOPI v Minister for Immigration

[2011] FMCA 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPI v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 143

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant.

Federal Magistrates Court Rules, rr.13.03C, 16.05

Applicant: SZOPI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1932 of 2010

Judgment of: Barnes FM

Hearing date: 2 March 2011

Delivered at: Sydney

Delivered on: 2 March 2011

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. There being no appearance by the applicant the application of 2 September 2010 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,200.

3. The solicitor for the first respondent notify the applicant of the orders made today and of the effect of rule 16.05 of the Federal Magistrates Court Rules by letter sent by prepaid post to both the address for service and postal address contained on the application of 2 September 2010 within seven (7) days of today's date.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1932 of 2010

SZOPI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant sought review of the Tribunal decision by application filed in this court on 2 September 2010 accompanied by a supporting affidavit.

2. He attended a directions hearing held by a Registrar of the court on 23 September 2010.  He had the assistance of a Mandarin interpreter.  On that day orders were made including an order listing the matter for final hearing before me at 10.15 am today at the court address specified in those orders.

3. Orders were also made giving the applicant the opportunity to file an amended application, further affidavit evidence and requiring the filing and service of legal submissions and a list of authorities.  No further documents were filed by the applicant.

4. The applicant was not present today at the time when the matter was listed, nor is the applicant present now some 20 minutes later.

5. In these circumstances the first respondent seeks that the application be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules. The solicitors for the respondents wrote to the applicant at his address for service (but not his postal address) sending written submissions and reminding him of the date, time and place of the hearing by letter of 17 February 2011. The applicant was in any event on notice of the time and place of the hearing by virtue of the orders made on 23 September 2010 in his presence.

6. Notwithstanding that the written submissions were sent to the applicant’s residential address, rather than to his postal address, I am of the view that the applicant has had the opportunity to appear today and in his absence orders should be made dismissing the matter for non-appearance. However, in order to allow for the possibility that there may be a legitimate reason for the applicant’s failure to appear today and bearing in mind the address to which the solicitor’s letter of 17 February 2011 was sent, I also intend to order that the solicitors for the first respondent notify the applicant of the orders made today and the effect of r.16.05 of the Federal Magistrates Court Rules by a letter sent both to his home address and postal address within seven days from today’s date.

7. The Minister also seeks costs in the sum of $4,200.  Such an order is appropriate. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Date:  9 March 2011