SZQQN v Minister for Immigration

[2012] FMCA 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQN v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 330

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

Federal Magistrates Court Rules 2001 (Cth), r.13.03C

Applicant: SZQQN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2098 of 2011

Judgment of: Nicholls FM

Hearing date: 7 March 2012

Date of Last Submission: 7 March 2012

Delivered at: Sydney

Delivered on: 7 March 2012

REPRESENTATION

The Applicant: No Appearance

Appearing for the Respondents: Ms L Weston

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application made on 16 February 2012 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 $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2098 of 2011

SZQQN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This Application In A Case was made on 16 February 2012. The applicant sought to reinstate his originating and substantive application, which was made on 16 September 2011. That application sought judicial review of a decision of the Refugee Review Tribunal, which had affirmed an earlier decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant did not attend at the first Court date. I was satisfied that the applicant had reasonable notice of the time, date and place of that Court event. No explanation was proffered, nor was any available, for his failure to attend. There was otherwise no request for an adjournment. I made orders at that time, pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), that the matter be dismissed for non-appearance.

2. By application on 16 February 2012, the applicant sought to reinstate his matter. At that time the relevant notation given by the Court’s registry on the face of that application was that the matter was listed at 9.15 am on 7 March 2012, which is today.

3. The applicant also filed an affidavit at that time. While that affidavit has not been formally read, I can note that, in effect, the applicant states in that affidavit that he did not know the time and date of the first Court date for the substantive application so he was not able to attend. He had been waiting for the Court to send him a letter. That notification however (the time and date of the listing) was given at the time of the making of the application.

4. When the matter was called this morning at 9.15am there was no appearance by the applicant. The matter was stood down. Some half an hour later when the matter was called again there was still no appearance by the applicant. 

5. The Minister’s solicitor, Ms L Weston, with the assistance of Madam Interpreter, who had been retained to assist in this matter in the Mandarin language, telephoned the applicant. He again claimed that his agent had not told him of the Court date. Nonetheless, he was given the opportunity to attend at 2 pm today. When the matter was called at that time there was still no attendance by the applicant. Nor was there any explanation for his non-attendance. 

Consideration

1. I refer to what I have earlier said in relation to this matter. I note that the notification this morning, at about 9.45am, to the applicant of the adjournment of the matter to 2pm this afternoon was conveyed to the applicant by the Minister’s solicitor, with the assistance of Madam Interpreter. My knowledge of that notification has come from what has fallen to me from the Bar Table, obviously not in an evidentiary context. Nonetheless, I accept in the circumstances what Ms Weston has put to me as to the notification that she gave to the applicant about the need to attend this afternoon at 2pm if he was minded to pursue his matter.

2. There is a preliminary matter, and that is the stated reason for the making of the Application In A Case. At best, relying on the applicant’s affidavit filed in these proceedings (although not formally read), the applicant states that he was awaiting some communication from the Court. It may be that the applicant was confused as between the Court and the Refugee Review Tribunal. The latter routinely sends letters to applicants following the making of an application for merits review, unlike the Court where the Registry provides a relevant Court date at the time of application.

3. I am satisfied, albeit put to me from the Bar Table, that the applicant was told of the matter today. The explanation that he appears to have given by telephone, that a migration agent did not tell him that his matter was on today, does not detract from the point that the applicant, whether his agent was involved or not, knew of the Court matter scheduled for 9.15am this morning. He was given the opportunity of at least a four hour period to attend Court which, in the circumstances, is a reasonable time. The applicant was somewhere in the Sydney area and, for whatever reason, has chosen not to attend.

4. In the circumstances I am satisfied that the Minister’s application for dismissal, pursuant to r.13.03C(1)(c) of the Rules, should be granted. The applicant, for a second time, in circumstances where reasonable notice was provided to him, has failed to attend.

5. Further, it must not forgotten that reasonable notice was also provided to him on 16 February 2012 when he made his Application In A Case. Even if, for whatever reason, the applicant did not understand that notice, the matters that transpired this morning are sufficient, in my view, to establish that he has had a reasonable opportunity in all of the circumstances to gain notice of the matter being held today. Therefore the Minister’s application should be granted. I will make the order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  7 May 2012