SZROD v Minister for Immigration

[2013] FMCA 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROD v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 119

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

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

Applicant: SZROD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1289 of 2012

Judgment of: Emmett FM

Hearing date: 15 February 2013

Date of Last Submission: 15 February 2013

Delivered at: Sydney

Delivered on: 15 February 2013

REPRESENTATION

No appearance by or on behalf of the applicant

Appearing for the Respondents: Ms S Given

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 13 June 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 $5,200.

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

NOTE B: A copy of a letter from the first respondent’s solicitor, dated 7 February 2013, and addressed to the applicant at the both of the addresses supplied to the Court, is Exhibit 1R.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1289 of 2012

SZROD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 13 June 2012, be 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 appear at today’s scheduled hearing.

2. I note that the applicant attended a directions hearing before me on 29 June 2012.

3. On that occasion, I explained to the applicant that the grounds of the application made bare assertions that did not disclose an error capable of review by this Court whilst ever they remained so unparticularised;  that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions; and, that the only issue before this Court was whether or not the decision of the Tribunal was made according to law or was affected by a mistake going to the Tribunal’s jurisdiction. I also explained to the applicant the cost consequences that may flow if the applicant was unsuccessful and provided the applicant with a copy of the relevant costs schedule of this Court.

4. I then confirmed with the applicant that he wished to continue with his application. The applicant was then given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, by 31 August 2012, and any evidence upon which he relied, by way of affidavit, including any transcript of the Tribunal hearing, by 31 August 2012. The applicant was also directed to file and serve written submissions in support of his application 14 days before the hearing. The matter was then set down for hearing today at 10.15am.

5. The applicant elected to participate in the Court’s RRT Legal Advice Scheme. However, a file note from the Registry of the Court discloses that the panel advisor, Mr Cameron Jackson, tried on several occasions to telephone the applicant with an interpreter but was unable to reach the applicant. As a result, the applicant has not participated in that scheme.

6. At the directions hearing, the applicant was given the contact details of legal services providers and translating and interpreting services in documents headed in his own language to assist him, should he wish to seek his own advice.

7. The orders made also informed the applicant that if there was no appearance by him at any scheduled Court event, including today’s hearing, that his application may be dismissed without further notice.

8. There has been no document filed by or on behalf of the applicant, either in accordance with the directions made on 29 June 2012 or otherwise. Further, no communication has been received by this Court or the first respondent from the applicant, either seeking an adjournment of today’s hearing or for any other reason. 

9. The applicant has been called this morning outside on several occasions and has failed to appear. It is now 10.45am. The matter was set down for hearing at 10.15am. 

10. The solicitor for the first respondent, Ms Given, tendered a letter, dated 7 February 2013, from the first respondent’s solicitors to the applicant at both addresses provided by the applicant, in support of the first respondent’s application this morning. That letter was marked Exhibit 1R.

11. Exhibit 1R enclosed, by way of service upon the applicant, the respondent’s outline of submissions and advised the applicant of the date, time and place of today’s hearing. Exhibit 1R also informed the applicant that if he did not appear today, the first respondent may apply to have the matter dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) with costs.

12. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and, for whatever reason, has chosen not to attend. In the circumstances, the orders sought by the first respondent are appropriate. 

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

Date:  22 February 2013