SZRME v Minister for Immigration
[2012] FMCA 555
•21 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRME v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 555 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no appearance – application dismissed pursuant to r.13.03C(1)(c) – costs order made. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03C, 44.12 Migration Act 1958 (Cth), ss.426A, 476 |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZRME |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1071 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 June 2012 |
| Date of Last Submission: | 21 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2012 |
REPRESENTATION
| The Applicant: | No Appearance |
| Appearing for the Respondents: | Ms A Wain |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 17 May 2012 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1071 of 2012
| SZRME |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me the Minister’s application for dismissal of an application for judicial review of a substantive decision for want of appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). In my view, it is appropriate that that matter now proceed to consideration. The applicant, by his appearance at the first Court date (on 13 June 2012), was put on notice that the Court would conduct a show cause hearing today in relation to his application.
That application is an application, made on 17 May 2012, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 13 April 2012, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
By way of background, and as apparent from the Tribunal’s decision record (“DR”) (which has been put before the Court by the applicant by way of his affidavit of 11 May 2012), the applicant applied for a protection visa on 27 September 2011 ([2] at DR 2). On the occasion provided to him by the delegate to attend at an interview, he did not attend ([23] at DR 5). He gave no explanation for that non-attendance.
On refusal, he applied for review to the Tribunal ([25] at DR 5). The applicant was invited to a hearing. Again, without explanation, and without any request for an adjournment, he did not attend ([26] at DR 5). He provided no subsequent explanation to the Tribunal for his non-attendance. The Tribunal proceeded to make its decision pursuant to s.426A of the Act ([29] – [31] at DR 6).
The Tribunal’s decision to affirm the delegate’s decision was made after it had put the applicant on notice that it was unable to make a favourable decision on what was before it, and it had invited him to a hearing for the purpose of enhancing his case, giving his evidence and explaining his claims. The Tribunal’s ultimate decision, that is its conclusion to affirm the delegate’s decision, appears to be exactly that circumstance described by a Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287. That is, the inevitable consequence of the applicant’s unexplained failure to attend at the hearing.
The applicant then came to this Court with three bare assertions in his application, asserting jurisdictional error on the part of the Tribunal. At the first Court date in this matter the applicant was put on notice as to the need to address the basis for the Tribunal’s decision in light of his unparticularised, bare assertions as to jurisdictional error.
I took into evidence today two documents:
1)The first is a letter, dated 19 June 2012, sent from the Minister’s solicitor to the applicant at his address for service, reminding the applicant of today’s show cause hearing and the time, date and location of this hearing (Respondent’s Exhibit 1 – “RE1”).
2)The second is a file note by the Minister’s solicitor, Ms A Wain, made on 13 June 2012, which was the first Court date for this matter. The file note, amongst other things, records a conference held by the Minister’s solicitor with the applicant, with the assistance of an interpreter in the Indonesian language, prior to the matter being called in Court. That note provides that the applicant was advised in that conference that it was “very important” that he attend at all Court dates and that, in the event he failed to attend, the Minister may make an application that his application be dismissed and that costs be ordered against him (Respondent’s Exhibit 2 – “RE2”).
Consideration
I am satisfied that the applicant has had reasonable notice of the show cause hearing today, both having regard to what I said at the first Court date and in light of RE1.
For whatever reason, the applicant has chosen not to attend today. Nothing has been heard from the applicant, either by the Minister’s solicitors or the Court’s registry. The applicant’s absence today remains unexplained. It is difficult not to see his absence today as being a continuation of his conduct in making an application in relation to his attempts to remain in Australia and then not appearing at critical events in pursuit or prosecution of that application.
Nonetheless, I am satisfied the applicant has had reasonable notice. He has not attended. No explanation has been proffered. It is now nearly 15 minutes past the scheduled starting time. It is appropriate that the application be dismissed as the Minister applies. I will make an order dismissing the application pursuant to r.13.03C(1)(c) of the Rules.
Costs
I have before me an application by the Minister that an order for costs be made against the applicant in light of my finding that an order dismissing the application should be made. In addition, that the costs should be set in the amount of $2000.00.
It is the case that the Minister’s letter of 19 June 2012 (RE1) to the applicant was deficient in putting the applicant on notice that costs may be sought against him if he failed to attend today. However, in my view it is appropriate that I proceed to consider this matter for two reasons.
First, I have had regard to RE2 (see at [7](b) above) and, in the absence of any evidence to the contrary, I would accept the submission supported by a file note from an officer of the Court that indeed the possibility of costs was raised with the applicant prior to the first Court date in this matter.
Second, it is the case that even if the applicant did not have specific notice, I can take judicial note that even in countries other than Australia an unsuccessful attempt at legal proceedings would result in some form of costs being awarded against the unsuccessful party.
On either basis, and for the record, I accept Ms Wain’s submission that the matter had been raised with the applicant. That, in itself, is sufficient in my view for me to proceed. On that basis, it is appropriate that a costs order be made.
As is often said, costs follow the event. There is nothing before the Court now to argue against the making of a costs order. I will make that order.
As to the amount, I am satisfied that in all circumstances, having regard to the work actually done by the Minister’s solicitors, the amount sought is a reasonable amount. Given that this matter was scheduled for a hearing under r.44.12 of the Rules, the Minister could have sought an amount up to $3,239.00, noting the relevant Schedule to the Rules of this Court as a guide. The amount sought is well within that amount. But as I said, I am otherwise separately satisfied that the amount sought is a reasonable amount. I will make the order.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 27 July 2012
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