SZRHN v Minister for Immigration

[2012] FMCA 913

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHN v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 913

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

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

Applicant: SZRHN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 674 of 2012

Judgment of: Nicholls FM

Hearing date: 7 September 2012

Date of Last Submission: 7 September 2012

Delivered at: Sydney

Delivered on: 7 September 2012

REPRESENTATION

The Applicant: No Appearance

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 27 March 2012, is dismissed pursuant to Rule 13.03(1)(c) of the Federal Magistrate Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 674 of 2012

SZRHN

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 today an application made on 27 March 2012, pursuant to s.476 of the Migration Act 1958 (Cth), seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 February 2012, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. In that application, the applicant asserted, essentially, two grounds. It must be said that those grounds were broad and general. They appeared, at best, to seek merits review and to make allegations that the decision of the Tribunal was “not fair”. Both those matters provide a remote chance, at best, of the applicant succeeding before the Court. 

2. When the matter was set down for final hearing on 11 April 2012 at the first Court date, the applicant appeared in person. On that occasion, he was assisted by an interpreter in the Mandarin language. Orders were made setting the matter down for final hearing today at 2.00pm.

3. I also note that on that occasion I urged the applicant to attend carefully to the lawyer on the panel of the Court’s “RRT Legal Advice Scheme” who would be assigned to provide assistance to him. From the Certificate on the Court’s file, it appears that that lawyer had difficulty in contacting the applicant. But that, nonetheless, legal advice was sent to the applicant in writing.

Before the Court

1. What I have before me today is a situation where, when the matter was called at 2.00pm, there was no appearance by the applicant. I adjourned, and the matter was called again at 2.15pm. At that time, there was still no appearance by the applicant.

2. It is now 2.20pm and the applicant has not appeared. Nor, to the best of my knowledge, has there been any request made through the Court’s Registry for an adjournment of these proceedings, or to otherwise explain the applicant’s inability to attend. Nor, I am told from the bar table, has there been any approach to the Minister to indicate any such difficulty.

3. The Minister’s representative, Ms M Stone, in these circumstances has applied for, and has sought from the Court, dismissal of the originating application on the basis of the applicant’s non-appearance. That avenue is envisaged by the Federal Magistrates Court Rules 2001 (Cth), in particular r.13.03C(1)(c).

4. I am satisfied, based on what I have referred to above, that the applicant was on notice that this matter was set down for final hearing today. His absence, despite some opportunity given to him in terms of latitude for lateness or difficulties with travel and the like, remains unexplained. It is appropriate in the circumstances that the Minister’s application for dismissal for want of appearance be granted. I cannot see any reason not to do so.

Costs

1. In the circumstances, it is appropriate that I proceed to consider the Minister’s application for costs.

2. The Minister, through his representative, has come to this Court ready to answer the applicant’s case. The Minister has prepared by filing and serving written submissions, a formal Response, and assembled multiple copies of a Court Book. That is, in contrast to the applicant who, beyond the making of his application, has done nothing, to the knowledge of the Court, to prosecute his case.

3. In that process the Minister, who I accept had no knowledge of the applicant’s intention not to appear today, prepared for the hearing. I am satisfied that costs were incurred in that process. I am satisfied that a costs order should be made in favour of the Minister.

4. As to the amount, the amount sought is, in my view, a reasonable amount given the work that has actually been done by the Minister’s solicitors. I will make an 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