SZOVF v Minister for Immigration
[2011] FMCA 137
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 137 |
| MIGRATION — PRACTICE & PROCEDURE — Refugee Review Tribunal – non attendance by Applicant at scheduled hearing – whether applicant’s application for judicial review has any, or any reasonable, prospects of success – dismissal pursuant to Reg 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Federal Magistrates Court Rules 2001 (Cth), Reg 13.03C |
| Applicant: | SZOVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2620 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 March 2011 |
| Date of Last Submission: | 2 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondents: | Ms L. Buchanan (Australian Government Solicitor) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2620 of 2010
| SZOVF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to Regulation 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) that the proceeding before this Court, commenced by way of application filed on 2 December 2010, be dismissed by reason of the failure of the applicant to appear at this morning’s scheduled hearing. The time is now 10:27 am and the applicant has been called outside on at least two occasions, the last being just now.
I note that at the first court date on 14 December 2010, there was no appearance by the applicant. However, at the request of the first respondent at the directions hearing, it was stood over to 17 December 2010 and the applicant notified of that rescheduled directions hearing.
The applicant did appear at the further directions hearing on 17 December 2010 with the assistance of a Mandarin interpreter. On that occasion the applicant was given leave to file and serve an amended application by 20 January 2011 and any evidence by way of affidavit by 20 January 2011. The applicant was also directed to file and serve written submissions in support of his application by 17 January 2011. On that occasion the matter was set down for final hearing today at 10:15 before me.
I note that the relevant directions of the Court, including the directions setting the matter down for final hearing today, were interpreted for the applicant in my presence in the Court. The applicant was also informed in those directions that if there was no appearance by him at the time of any scheduled court event that his application may be dismissed without further notice.
At the directions hearing, the applicant was also referred to the Court’s Legal Advice Scheme. On 11 January 2011, written advice was provided to the applicant. I note in the certificate from the panel member that the applicant was contacted but declined to attend an appointment with the legal adviser. For that reason, written advice was provided to the applicant on that date.
Since that directions hearing there has been no document filed by or on behalf of the applicant either in accordance with the Court’s directions or otherwise.
Further, there has been no contact received by my chambers or the Court from the applicant seeking an adjournment of today’s hearing. I am informed by the solicitor for the first respondent, Ms Buchanan, that there has been no contact made by the applicant with the first respondent’s solicitors either.
In the circumstances I am satisfied that the applicant was aware of today’s scheduled hearing and for whatever reason chose not to attend.
I note that the first respondent filed written submissions on 24 February 2011 in support of the first respondent’s response, filed on 14 December 2010.
There were further documents filed by the first respondent on 24 February 2011 for which leave would be required from the Court, those being further documents to supplement the bundle of relevant documents that was filed and served on the applicant by 23 December 2010.
I also have regard to the grounds of the applicant’s application which are in the following terms:
“1. The Tribunal constructively failed to exercise its jurisdiction.
2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequences of the claim.
3. The Tribunal overlooked an aspect of my claim. ”
Plainly, those grounds do no more than make bare assertions and do not disclose an error on their face capable of review by this court. They are otherwise unsupported by particulars, evidence or submissions.
I also note that in the applicant’s affidavit, sworn/affirmed on 30 November 2010 and filed on 2 December 2010, in support of the application, the applicant stated the following:
1. The Tribunal referred to the country information only to the extent to which it suited the delegate of the Minister
2. The Tribunal failed to into consideration my situation in China nor my state of persuasion.
Again, the allegations in that affidavit are unsupported by particulars evidence or submissions and do not, on their face, disclose an error capable of review by this court.
I note that the response, filed on 14 December 2010, asserts that the application has not raised an arguable case for the relief claimed. The submissions filed by the first respondent on 24 February 2011 provide a summary of the background and claims of the Tribunal decision, the application to this Court and submissions in support of their response.
In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 2 December 2010, should be dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 8 March 2011
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