SZRPO v Minister for Immigration

[2012] FMCA 1081

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPO v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1081

MIGRATION – Review of the decision of the Refugee Review Tribunal – no appearance by the applicant – applicant dismissed pursuant to r.13.03(1)(c) of the Federal Magistrates Court Rules2001 (Cth).

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules2001 (Cth), r.13.03C

Applicant: SZRPO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1442 of 2012

Judgment of: Nicholls FM

Hearing date: 7 November 2012

Date of Last Submission: 7 November 2012

Delivered at: Sydney

Delivered on: 7 November 2012

REPRESENTATION

The Applicant: No appearance

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 2 July 2012 is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1442 of 2012

SZRPO

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 2 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 May 2012, which affirmed the decision of the delegate of the respondent Minister to refuse a grant of a protection visa to the applicant.

2. The grounds of the application before the Court are in bare terms:

   “1. RRT failed to consider my evidence according to law.

   2. RRT has bias against me.

   3. DIAC and RRT breached procedural fairness.”

3. At the first Court date in this matter, I impressed upon the applicant, who appeared at that time with the assistance of an interpreter in the Mandarin language, the need to obtain legal advice to give substance and particularity to her very broad claims, which were simply assertions of bias and breaches of procedural fairness. For that purpose, I referred the applicant to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. I explained to the applicant at the first Court date the importance of attending very carefully to that lawyer and put the applicant on notice that should her application remain in the bare state in which it was initially presented that, quite probably, the matter would proceed to some immediate disposition today.

4. When the matter was called today at 11.25am, the matter having been set down for 11.00am, there was no appearance by the applicant. I note for the record I am unaware of any attempt by the applicant, or someone on her behalf, to contact the Court’s registry to explain any difficulty in her appearing today. No application for an adjournment has been made. In those circumstances, Mr M Alderton, who appears for the Minister, sought dismissal for want of appearance by the applicant pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”).

5. In the circumstances, it is appropriate that the Court make such an order pursuant to the Rules. I can take note of correspondence, and a certificate from Mr Terence Ower, barrister-at-law, who was the panel member to whom this matter was referred. The letter from Mr Ower explains his diligent, and numerous, attempts to contact the applicant who, for whatever reason, remained unavailable to him.

6. I note also that I was unaware at the time at the first Court date that the address for service provided by the applicant was, in fact, a post office box number in Auburn, New South Wales, which, when I have regard to Court Book at p.40, is the post office box of a migration agent, “Jie Yu” of “Eternity International P/L”, a person who has been involved in matters before this Court on previous occasions.

7. I am satisfied that all the correspondence that has been sent to the applicant was to that post office box address, but also to an address in Griffith, New South Wales, which the applicant notified as his home address.

8. There is nothing before the Court in discharge of the opportunity that was provided to the applicant by orders made at the first Court date, that includes the opportunity to file any amended application, and any further evidence in support of her application to the Court. In short, the applicant has done nothing since her appearance at the first Court date (including not obtaining legal advice in pursuit of the opportunity made available to her).

9. In all the circumstances, I agree with Mr Alderton that the lack of action by the applicant, at the very least, shows a disinterest in prosecuting her application. For that reason, and for the reason of her unexplained absence today, I will make the order sought by the Minister.

Costs

1. The Minister has also sought costs. It is appropriate, in all the circumstances, that an order for costs be made in this matter. There is nothing before the Court, that I can see, that would argue against the making of a costs order in the normal course of events. The Minister has clearly taken steps through his solicitors to respond to the application made. In so doing, solicitors have incurred certain costs.  When I have regard to the material on the Court’s file, I am satisfied that the amount sought is a reasonable amount.  For those reasons I will make the order as sought by the Minister.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  29 November 2012