SZQLC v Minister for Immigration

[2012] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLC v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 329

MIGRATION – No appearance by the applicant – applicant dismissed – costs ordered.

Federal Magistrates Court Rules 2001 (Cth), r.13.03C, Sch.1
Migration Act 1958 (Cth), s.476

Applicant: SZQLC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1511 of 2011

Judgment of: Nicholls FM

Hearing date: 30 March 2012

Date of Last Submission: 30 March 2012

Delivered at: Sydney

Delivered on: 30 March 2012

REPRESENTATION

The Applicant: No Appearance

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 18 July 2011 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $4,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1511 of 2011

SZQLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application by the respondent Minister that this matter be dismissed, because of the applicant’s non-appearance, pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). When the matter was called today there was no appearance by the applicant.

Background

1. On 18 July 2011 the applicant made an application to this Court, pursuant to s.476 of the Migration Act 1987 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 June 2011, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. The immediate background is that the applicant appeared at the first Court date in this matter on 10 August 2011. The matter was set down for final hearing. For a variety of reasons, that date was subsequently amended, and the matter ultimately set down for hearing at 10.15am on 30 March 2012.

Consideration

1. In relying on Respondent’s Exhibit 1 (a letter from the respondent Minister’s solicitor to the applicant at his address for service dated 8 November 2011), I am satisfied that the applicant had notice that his matter had been set down for hearing, had been adjourned, and then set down for hearing at 10.15am on 30 March 2012 at Court Room 10.2, 80 William Street, Sydney, which is where the Court is currently sitting. The applicant was on notice of that date from 8 November 2011. 

2. I should note also on the Court’s file a letter from the Court to the applicant, dated 17 October 2011, advising him of the date and time of the hearing, but the venue at that time had not been settled. In any event, I am satisfied in all that the applicant has had reasonable notice of the time, date and place of the hearing.

3. Nothing has been heard from the applicant, either through the Minister’s solicitors or the Court’s registry, as far as I am aware, of any difficulty in attending today, or of any difficulty in transporting himself to the Court today. Nor has any application for an adjournment been made.

4. I should just note in this matter that the applicant’s sole and bare ground in the application was that he had difficulties in understanding the interpreter at the Tribunal hearing. No particulars were provided. 

5. At the first Court date I emphasised with the applicant that he would require some particulars and evidence in support of his ground when the matter came on for final hearing if he was to have a reasonable prospect of making out his complaint. Orders were made at that time setting out a timetable for the provision of any evidence, and indeed any further amended application giving particulars. Nothing has been filed by the applicant.

6. I also note, from the Court’s record, that the applicant did access the Court’s “RRT Legal Advice Scheme”. There is a certificate on the Court’s file from a lawyer on the panel of that scheme who certifies that he met with the applicant, and that written advice was provided to the applicant.

7. In the circumstances, there may be an inference that can be drawn that the applicant’s failure to provide any additional material whatsoever, despite opportunity and despite being on notice, may be an indicator that he has decided not to press or prosecute his application.

8. But whatever may be the case, what clearly remains is that the applicant has had reasonable notice of the matter being set down today.  His absence remains unexplained. It is now twenty-five minutes past the scheduled hour. It is appropriate in these circumstances that I grant the Minister’s application. I will make the order as the Minister seeks.

Costs

1. It is appropriate that an order for costs be made in the usual way. While the applicant is not here to argue against the making of an order, there is nothing in what is before the Court that would argue against the making of such an order. 

2. The Minister’s representatives have followed the timetable that was agreed at the first Court date. In so doing, the Minister has incurred legal costs, and in my view, the Minister should recover some of those costs.

3. As to the amount, $4,300.00, I am satisfied, given the work that has actually been done by the Minister’s solicitors, that the amount sought is a reasonable amount. It is within the guideline provided in Sch.1 to the Rules. I will make the order in that amount.

4. Before I make the orders, I note that we are now coming up to nearly half an hour past the scheduled time. There has still been no appearance by the applicant. I will proceed to make the orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  1 May 2012