SZOQU v Minister for Immigration - [2010] FMCA 985

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 985

MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of failure of the applicant to appear.

Federal Magistrates Court Rules 2001 (Cth)

First Applicant:

SZOQU

Second Applicant:

SZOQT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2112 of 2010

Judgment of:

Emmett FM

Hearing date:

2 December 2010

Date of Last Submission:

2 December 2010

Delivered at:

Sydney

Delivered on:

2 December 2010

REPRESENTATION

No Appearance by the Applicants

Counsel for the First Respondent:

Mr H. Bevan

Solicitors for the First Respondent:

Michelle Stone, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2112 of 2010

SZOQU

First Applicant

SZOQT

Second Applicant

And

MINISTER FOR IMMIGRATION AND 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 27 September 2010, be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of either applicant to appear at today’s scheduled hearing.
In support of that application, counsel for the first respondent, Mr Bevan, tendered two letters. The first letter is a letter from my associate dated 26 October 2010, addressed to the applicants at the address provided by them on the application filed on 27 September 2010 and sent also by email to the email address provided by the first-named applicant in an affidavit sworn/affirmed 24 September 2010 and filed on 27 September 2010. That letter is marked Exhibit 1R and informs the applicant that the matter was relisted for hearing today at 10.15 and provides the address of the court.
Counsel for the first respondent tendered a further letter, marked exhibit 2R, being a copy of a letter, dated 27 October 2010, on DLA Phillips Fox letterhead addressed to the first-named applicant at the address provided by the applicants on the application filed on 27 September 2010. That letter notified the applicant that the matter has been relisted for hearing today at 10.15, and again provided the address of the court for the applicant’s assistance.
Exhibit 2R also informed the applicant that if the applicant did not attend, the first respondent may seek to have the matter dismissed with costs for non-appearance.
Counsel for the first respondent also read the affidavit of Emilia Ramos, affirmed 1 December 2010, annexing documents confirming service by the first respondent upon the applicants of the first respondent’s written submissions attached to a letter dated 13 November 2010. I note that service was effected by courier to the applicants at the address identified on the application filed on 27 September 2010.
The letter attaching the submissions and annexed to the affidavit of Ms Ramos, notified the applicant that, if the applicants did not attend the scheduled hearing, the first respondent may seek to have the matter dismissed with costs for non-appearance. I also note that Orders made by me at the directions hearing on 26 October 2010, notified the applicant that in the event there is no appearance by or on behalf of the applicant at the time of any scheduled court event, the application may be dismissed without further notice.
I note that the courier’s report records that the letter, dated 13 November 2010, was left as instructed and that a signature acknowledged receipt of that letter. The only contact details provided by the applicants to this court are the address at Campsie to which the correspondence referred to above has been sent and the email address.
The applicant attended a directions hearing before me on 26 October 2010. On that occasion, I explained to the applicant that the grounds of the application were unsupported by particulars and made bare assertions of error. I explained to the applicants that the role of this Court is very different to that of the Tribunal, and that this Court only has power to consider granting the relief sought, in the event that the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction. The first named applicant then confirmed that the applicants wished to continue with their application.
In those circumstances, the applicants were given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon by 15 November 2010. The applicants were also directed to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the Tribunal hearing at 15 November 2010. The applicants were also directed that if they wished to rely on a recording of the Tribunal hearing, they must give notice to the first respondent and the Court by 15 November 2010 and that notice should identify the issue to which any part of the recording is relevant, and the approximate duration of the relevant recording.
The applicants were also directed to file and serve written submissions in support of their application for judicial review. The matter was set down for hearing on 4 December. Following completion of the matters before the Court, it became apparent that 4 December was a Saturday. For that reason, the matter was relisted on 26 October 2010 by my associate and, as stated above, the letter marked Exhibit 1R was sent to the applicants, both at the address provided by the first-named applicant and the email address provided by the first-named applicant.
At the directions hearing, the applicant elected to participate in the Court’s legal advice scheme. I note that the applicants met with a panel advisor on 11 November 2010 and received written advice on 12 November 2010. I also note that, at the directions hearing on 26 October, I gave to the applicants the contact details of legal services providers and translating and interpreting services in documents headed in the applicants’ own language.
There has been no document filed by or on behalf of the applicants, either in accordance with the directions of the Court made on 26 October 2010 or otherwise. There has been no communication received from the applicants either by this Court or the first respondent, or the first respondent’s solicitors, seeking an adjournment of today’s hearing, or indeed, any communication at all. I note that the matter has been called outside this courtroom, the last occasion being at 10.37am, and there continues to be no appearance by the applicants.
In the circumstances, I am satisfied that the applicant was aware of today’s hearing and for whatever reason has chosen not to attend.
In considering whether the matter should be dismissed this morning, I also have regard to the grounds of the application filed on 27 September 2010. They are as follows:
“1. The RRT decision-maker could not understand how corruption in Fuqing authorities.
2. The RRT decision- maker didn’t know the condition of China.
3. The RRT decision maker didn’t use the helpful case for my case.”
The grounds make bare assertions that do not particularise any error capable of review by this court. They certainly do not identify any error with any, or any reasonable, prospects of success. The applicant has been given an opportunity to file an amended application and evidence in support of those grounds. As stated above, no further documents have been filed by the Applicant.
In the circumstances, the orders sought by the first respondent this morning are appropriate and the proceedings before this Court commenced by way of application, filed on 27 September 2010, should be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 14 December 2010