SZRNM v Minister for Immigration

[2012] FMCA 1078

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1078

MIGRATION – Review of decision of the Refugee Review Tribunal – no appearance by the applicant at the final hearing – application dismissed for non-appearance.

Federal Magistrate Court Rules 2001 (Cth), rr.13.03C, 16.05
Migration Act 1958 (Cth), s.476

Applicant: SZRNM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1211 of 2012

Judgment of: Nicholls FM

Hearing date: 8 November 2012

Date of Last Submission: 8 November 2012

Delivered at: Sydney

Delivered on: 8 November 2012

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr JD Smith

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application made on 4 June 2012 is dismissed, pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1211 of 2012

SZRNM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. It is appropriate that this matter be dismissed, pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”). The application before the Court, pursuant to s.476 of the Migration Act 1958 (Cth), was filed with the assistance of lawyers on 4 June 2012. It sought review of a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed an earlier decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The history of this matter is that orders were made, by consent on 26 June 2012, for the conduct of this matter. Those orders specifically ordered that the matter was set down for final hearing on 8 November 2012 at 10.15am. I see that since the making of those orders solicitors for the applicant filed, on 17 October 2012, a notice of their intention to withdraw as the applicant’s lawyer. Subsequently, the notice of the withdrawal was filed in this Court on 26 October 2012.

3. When the matter was called today Mr J Smith of counsel appeared for the Minister. The applicant did not appear. At that point the Court, nor the first respondent (as I accept what was said from the bar table) had otherwise heard from the applicant seeking any adjournment of the hearing today, nor otherwise to explain any difficulty in attending.

4. I adjourned for the purpose of allowing the solicitor for the Minister to attempt to contact the applicant. From the bar table I have been told that a conversation apparently took place between the applicant and the Minister’s solicitor in this matter. The applicant confirmed that he had received the Minister’s written submissions in this matter. I inferred from that, therefore, that he was aware that the matter was set down for hearing today. Plainly this was not put before the Court in any evidentiary context.

5. I have to also assume, in the absence of anything to the contrary, that his solicitors, who were acting for him at the time of the first Court date, would have conveyed to him the orders made at that time, including Order 11 which, as I have noted above, set the matter down for hearing today.

6. I also note, and in the context of the appropriate caution in the manner in which this was conveyed to the Court, that the applicant had some intention of engaging another firm of solicitors. He apparently had “some hope”, although not expressed as any formal request for an adjournment, that the hearing of this matter could be put off to some future time.

7. I do not see any of this as being such as to justify any adjournment, or any further postponement, of this matter. The applicant has had ample opportunity to engage any other legal representation since the notice of intention to withdrawal was given to him on or about 17 October 2012.

8. It remains that it was plainly open to the applicant to have come to Court today and to have sought to put the matters that he conveyed to the Minister’s solicitor to the Court. He did not do so. I am also mindful of the existence of r.16.05 of the Rules, which enables the applicant to seek to reagitate his matter if he wishes to do so.

9. What also remains is that the applicant was on notice of the hearing today, and the time and location of the hearing. When the matter was called, the applicant did not appear. I am not satisfied that the reason for his non-appearance is such as to prevent the order that, in my view, is called for. That is, an order dismissing the application for

   
   

   non-appearance. Accordingly, I will make that order.

Costs

1. As to the matter of costs, it is appropriate that a costs order be made. The applicant was on notice that the Minister would seek dismissal of the application with costs if he did not appear today. In that regard, I am, to the extent that I can be, satisfied that given what the applicant has conveyed to the Minister’s solicitor (I accept again with all the appropriate caution) that is that he saw the Minister’s written submissions where the matter of costs was plainly raised in those submissions.

2. I also note that in his protection visa application that the applicant indicated that he could speak, read and write English, as well as a number of other languages. English was at the top of his “list”. In light of that, and notwithstanding that an interpreter in an appropriate language was provided, I am satisfied that the applicant could have, at least, had the opportunity to have understood that costs would be an issue in these proceedings if he were to be unsuccessful. I cannot see any reason not to make the costs order. The amount sought is consistent with the relevant Schedule to the Rules and I will make the order in that amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  29 November 2012