SZRAU v Minister for Immigration

[2012] FMCA 914

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRAU & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 914

MIGRATION – Originating application seeking review of a decision of the Refugee Review Tribunal – no appearance by applicants at the final hearing – Minister’s application for dismissal pursuant to r.13.03C(1)(c) – originating application dismissed.

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

First Applicant: SZRAU

Second Applicant: SZRAV

Third Applicant: SZRAW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 33 of 2012

Judgment of: Nicholls FM

Hearing date: 17 September 2012

Date of Last Submission: 17 September 2012

Delivered at: Sydney

Delivered on: 17 September 2012

REPRESENTATION

The Applicants: No appearance

Appearing for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 9 January 2012 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first named applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 33 of 2012

SZRAU

First Applicant

SZRAV

Second Applicant

SZRAW

Third 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 made on 9 January 2012, pursuant to s.476 of the Migration Act 1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 December 2011, which affirmed a decision of the respondent Minister’s delegate, made on 31 May 2011, to refuse the grant of protection visas to the applicants.

Background

1. This matter was set down for final hearing at 2.15pm today. The matter was called at that time and there was no appearance by, or for, the applicants. [I note that the second and third named applicants are the children of first named applicant (“the applicant”) and that she acts for them in their interests as their litigation guardian.]

2. At the first Court date the applicant appeared in person and was assisted by an interpreter in the Mandarin language. I made orders at that time, setting the matter down for final hearing today at 2.15pm. At that time I emphasised to the applicant the date of the hearing. Further, in light of the grounds in the application to the Court, I urged her to see the lawyer assigned to her from the panel on the Court’s “RRT Legal Advice Scheme”.

3. From the Court’s file, I see that she was assigned Mr Julian Gormly of counsel who is certainly known to the Court. He has appeared in a number of matters before me. I am satisfied that he would have competently assisted the applicant.

4. In light of the non-appearance of the applicants, the Minister has made an application to the Court that their application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

5. I have heard submissions by the respondent Minister in support of that application for dismissal. I agree with the respondent’s submission that the applicant was given opportunity at the first Court date to do a number of things. Further, she was, by order made relating to written submissions, compelled to file and serve written submissions by a particular date. She has not done so

6. From what is before me, in support of the Minister’s application for dismissal, it is clear that the applicant had notice of the proceedings today at 2.15pm, and the location. I refer here also to “Respondent’s Exhibit 1” which is a letter, dated 7 September 2012, to the applicants at their address for service reminding them of the matters listing for final hearing today. Second, I note what I have already said in relation to what occurred at the first Court date. Further, I note that despite opportunity and indeed, separately, in relation to the order requiring written submissions, the applicant has done nothing since the first Court date to demonstrate any intent to prosecute the application that she has put before the Court. Nothing has been heard from the applicant in relation to her pressing her application, either on her own behalf, or on behalf of her children.

7. I note that the time is now well past the scheduled time. There has been no application for any adjournment by the applicant. Nor indeed has anything been heard from the applicant to indicate any difficulty in attending Court today. In all the circumstances, I am satisfied that the applicant has had reasonable notice of the final hearing of her own, and her children’s, matter. There has been no demonstration of any impulsion to prosecute proceedings in the time that was available, and her absence today remains unexplained.

8. In all, therefore, I am satisfied that the Minister’s application for dismissal, pursuant to r.13.03C(1)(c) of the rules of this Court, should be granted.

Costs

1. The Minister seeks an order for costs in the sum of $5,000.

2. First, it is appropriate, in the circumstances, that an order for costs be made. There is nothing before the Court that would argue against the making of an order. Certainly the applicant’s unexplained failure to attend today is no reason not to make the order in favour of the Minister. The applicant had the opportunity to attend Court and, for whatever reason, has not attended.

3. I am satisfied that the Minister progressed to prepare for the case and prepared an outline of substantial written submissions, notwithstanding the paucity of the grounds put before the Court. I am satisfied that in all, including the work that would have been done by the Minister’s solicitors prior to recent events (that is, the filing and serving of multiple copies of the Court Book and the like), that the amount sought is a reasonable amount. I will make the order in the amount sought.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  26 October 2012.