SZQTH v Minister for Immigration
[2012] FMCA 282
•3 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 282 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether any adjournment application should be refused – whether proceedings should be dismissed by reason of the failure of the applicant to appear at scheduled hearing – whether grounds particularise any error capable of review. |
| Federal Magistrates Court Rules2001 (Cth), r.13.03C(1)(c) |
| Applicant: | SZQTH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2358 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2012 |
REPRESENTATION
No appearance by or on behalf of the applicant
| Counsel for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 18 October 2011, is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s final hearing.
The applicant pay the costs of the first respondent fixed in the amount of $3,500.
NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
The first respondent is directed to notify the applicant forthwith of the Orders made today and provide the applicant with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: A letter from the first respondent’s solicitor enclosing the first respondent’s outline of submissions, dated 28 March 2012 and addressed to the applicant, is Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2358 of 2011
| SZQTH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 18 October 2011, be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth), by reason of the failure of the applicant to appear at today’s scheduled hearing.
The application, filed on 18 October 2011, had as an address for service in Australia, an address in Victoria and a post office box in New South Wales.
On 9 November 2011, the applicant filed a Notice of Address for Service identifying the Victorian address and stating:
“I am living in Melbourne. Could you please relocate my hearing to Melbourne court. Thank you very much.”
No order was made transferring the matter to Melbourne.
On 23 November 2011, the applicant appeared before me at a directions hearing. On that occasion, no order for transfer of the matter from Sydney to Melbourne was made, although, I note that a Notice of Change of Address for Service was filed in Court on that day, again identifying the Victorian address.
Directions were made giving the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence by way of affidavit by 21 December 2011, and directing the applicant to file and serve submissions in support of the application. The matter was set down for hearing before me on 3 April 2012 at 10.15am.
The applicant elected to participate in the Court’s RRT Legal Advice Scheme, and I note that written advice was provided to the applicant in accordance with that scheme. The applicant was also provided at the directions hearing with the contact details of legal services providers in translating and interpreting services in documents headed in the applicant’s own language.
There have been no documents filed by the applicant, either in accordance with those directions or otherwise. However, my Chambers received a telephone call from the Registry in Melbourne this morning saying that a person identifying themselves as the applicant was in attendance at the Registry in Melbourne and told the Registry the he was presenting there for the Court appearance for today’s hearing.
I note that the matter was relisted by my Chambers on 7 December 2011 until today at 10.15am. In the circumstances, I am satisfied that the applicant was aware of today’s scheduled hearing and, for whatever reason, chose not to attend the scheduled hearing before this Court this morning.
The solicitor for the first respondent, Mr Baird, called Mr Jones, a solicitor, to give evidence of a telephone conversation that he had with the applicant yesterday afternoon. Mr Jones gave sworn evidence that he had a telephone conversation with the applicant yesterday that commenced with him telling the applicant that a letter, dated 28 March 2011 marked Exhibit 1R and sent by the first respondent’s solicitor to the applicant, had the incorrect date of today’s hearing. Mr Jones told the applicant that the hearing was today in accordance with the letter sent by my Chambers on 7 December 2011.
Mr Jones said that the applicant indicated that he understood and that he wished to have the matter transferred to Melbourne.
Mr Jones said that in response he gave the applicant the telephone number of my Chambers and told him to communicate with the Court if he wished to pursue that application. There has been no communication received by my Chambers, other than the communication from the Melbourne Registry to which I have already referred.
To the extent that I would understand the applicant was making an application this morning for his proceeding to be adjourned and to have the matter transferred, those applications are refused. In refusing those applications, to the extent that they were made, I have regard to the fact that the applicant has taken no steps at all to comply with the directions of the Court, has participated in the Court’s legal advice scheme, has made no formal application for transfer, filed his initiating application in Sydney and made no attempt to contact the first respondent or the Court until this morning. As stated above, the request for transfer made on the Notice of Change of Address for Service filed in Court at the first Court date on 23 November 2011, did not result in any order for transfer being made.
In relation to having the matter transferred to Melbourne, the applicant filed his application in Sydney. I note the grounds of the application are as follows.
“1. RRT used information which was discriminatory against me.
2. I am not treated with procedural fairness because of my national background.
3. The risks of my persecution is not properly assessed by both Department of Immigration and RRT.”
The grounds make bare assertions that are wholly unparticularised and do not by themselves disclose an error capable of review by this Court.
I am not satisfied that it is in the interests of justice that the matter be adjourned further. As stated above, clearly the applicant was aware of today’s hearing and for whatever reason has failed to attend.
In the circumstances, the orders sought by the first respondent that the proceeding be dismissed for non-appearance should be made with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 4 April 2012
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