SZQXD v Minister for Immigration

[2012] FMCA 375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXD v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 375

MIGRATION – Non-appearance by applicant at final hearing – application dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

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

Applicant: SZQXD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2747 of 2011

Judgment of: Emmett FM

Hearing date: 30 April 2012

Date of Last Submission: 30 April 2012

Delivered at: Sydney

Delivered on: 30 April 2012

REPRESENTATION

No appearance by the applicant.

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 1 December 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 hearing.

2. The applicant pay the costs of the first respondent fixed in the amount of $4,000.

3. The first respondent is directed to notify the applicant forthwith of the Orders made today and to provide the applicant with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2747 of 2011

SZQXD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. The first respondent seeks an order that the proceeding commenced by way of application filed on 1 December 2011 be 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 appear at today’s scheduled final hearing.

2. In support of the application, the first respondent’s solicitor, Ms Stone, read the affidavit of Emilia Ramos, affirmed on 23 April 2012. Ms Ramos’ affidavit annexed a copy of a letter sent to the applicant at the applicant’s address for service, dated 20 April 2012, enclosing by way of service a copy of the first respondent’s outline of submissions. The letter also reminded the applicant of the hearing date, time and location of today’s hearing. The letter also informed the applicant that, if the applicant did not attend today’s hearing, the first respondent may seek to have the matter dismissed with costs for non-appearance.

3. I note the time is now 11.40am. The matter has been called outside three times and there has been no appearance by or on behalf of the applicant. Further, there has been no communication received by the first respondent, the first respondent’s legal advisers, or by the Court from the applicant seeking any adjournment of today’s hearing or for any other reason.

4. I note that the applicant appeared at a directions hearing before me on 1 March 2012. On that occasion, the applicant was given leave to file an amended application and evidence in support of the application. The applicant was directed to file and serve written submissions fourteen days before the hearing, and the matter was set down for final hearing today at 10.15am.

5. There has been no document filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

6. I note that, at the directions hearing, the applicant completed a Notice to Unrepresented Applicants in RRT Review Cases to participate in the Court’s RRT Legal Advice Scheme. However, due to an administrative oversight, that has not yet occurred. However, I do not see that matter as impacting on the first respondent’s application this morning that the application be dismissed for non-appearance of the applicant.

7. At the directions hearing, the applicant was assisted by an interpreter in the Nepali language and each of the directions relevant to the applicant was interpreted for the applicant as I took him through each of the directions, including, Order 12, setting the matter down for final hearing today. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend.

8. As referred to above, the first respondent had foreshadowed with the applicant that, if the applicant did not appear today, the first respondent may seek to have the matter dismissed with costs. Accordingly, the orders sought by the first respondent, in my view, are appropriate and should be made.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  4 May 2012