SZRGF v Minister for Immigration

[2012] FMCA 727

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGF v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 727

MIGRATION – Review of decision of Refugee Review Tribunal – no appearance by or on behalf of the applicant at the final hearing – application dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Courts Rules 2001 (Cth).

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

Applicant: SZRGF

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 562 of 2012

Judgment of: Emmett FM

Hearing date: 30 July 2012

Date of Last Submission: 30 July 2012

Delivered at: Sydney

Delivered on: 30 July 2012

REPRESENTATION

No appearance by or on behalf of 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 14 March 2012, 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 $3,500.

3. The first respondent is directed to serve upon the applicant forthwith a copy of these Orders together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).

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

NOTE B: The affidavit of Sheaj Sayers, affirmed 27 July 2012 and filed in Court today, was read by the first respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 562 of 2012

SZRGF

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Magistrates Courts Rules 2001 (Cth) that the proceeding before this Court, commenced by way of application filed on 14 March 2012, be dismissed by reason of the applicant’s failure to attend today’s scheduled hearing.

2. I note that the time is now 10.39am. There has been no appearance for the applicant. The applicant has been called outside as recently as 10.39am.  There has been no communication received by the Court or the first respondent or the first respondent’s solicitors from the applicant seeking an adjournment of today’s scheduled hearing, or for any other reason.

3. I note that the applicant attended a directions hearing before me on 8 May 2012 with the assistance of an interpreter. On that occasion, I explained to the applicant that the grounds of her application made bare assertions which did not particularise an error capable of review by this Court. I explained to the applicant the cost consequences that may flow to her if she was unsuccessful including that any costs order that remained unpaid became a debt to the Commonwealth of Australia and as such would affect the applicant’s ability to obtain any other type of visa or re-enter Australia.

4. The applicant confirmed that she wished to proceed with her application. On that basis, I gave the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 19 June 2012. The applicant was also directed to file and serve, by way of affidavit, any evidence upon which she intended to rely, including any transcript of the Refugee Review Tribunal hearing, by 19 June 2012. The applicant was further directed to file and serve written submissions in support of her application 14 days before the hearing.

5. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. At the directions hearing, the applicant elected to participate in the Court’s RRT Legal Advice Scheme and I note the applicant received free legal advice in accordance with that scheme on 30 May 2012. I also note that at the directions hearing the applicant was provided by the Court with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.

6. The directions made by me on that day were provided to the applicant and the applicant signed an acknowledgement of receipt of those directions. The directions were read to the applicant and clearly stated that the matter was set down for final hearing today at 10.15am in this Courtroom before me. The directions also informed the applicant that if there was no appearance by or on behalf of the applicant at that time or at the time of any scheduled Court event, the application may be dismissed without further notice.

7. I also note the affidavit of Sheaj Sayers, affirmed 27 July 2012, annexing a letter sent to the applicant on 23 July 2012 from the first respondent’s solicitor enclosing a copy of the first respondent’s outline of submissions. That letter also informed the applicant that if she did not attend today’s hearing the first respondent may seek to have the matter dismissed with costs for non-appearance. Ms Sayers’ affidavit also annexed a copy of the registered mail log that recorded the sending of the letter. In the circumstances, on the evidence before me, I am satisfied that the letter was sent to the applicant on 23 July 2012 and delivered to the applicant on that date. 

8. In the circumstances, I am satisfied that the applicant was aware of today’s scheduled hearing and for whatever reason has chosen not to attend. 

9. Accordingly, the proceeding before this Court, commenced by way of application filed on 14 March 2012, should be dismissed with costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  17 August 2012