SZRTM v Minister for Immigration

[2013] FMCA 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTM v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 52

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – dismissal of judicial review application on account of the applicant’s non appearance.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZRTM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1908 of 2012

Judgment of: Driver FM

Hearing date: 30 January 2013

Delivered at: Sydney

Delivered on: 30 January 2013

REPRESENTATION

There was no appearance by the Applicant

Solicitors for the Respondents: Mr M Wiese
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1908 of 2012

SZRTM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking review of a decision of the Refugee Review Tribunal (the Tribunal) dated 3 August 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of political persecution.

2. The matter came before me for directions on 26 September 2012 at 9.30am.  The applicant attended in person with the assistance of a Punjabi interpreter.  I made orders by consent, including order 5, listing the matter for a final hearing today at 10.15am.  I confirmed with the applicant at the time I made that order that he understood and agreed to it, and that he would be able to attend court at this time.

3. The applicant has not attended court this morning.  The matter has been called twice and on each occasion there was no answer to the call.  In addition, my deputy associate, with the assistance of the interpreter engaged for today’s hearing, attempted to contact the applicant on his mobile telephone number nominated in his application and information sheet.  That attempt was unsuccessful.  There was no answer and the call was diverted to a message bank.

4. The solicitor for the Minister tendered as evidence[1], a letter dated 22 January 2013 addressed to the applicant at his nominated address for service. That letter provided a copy of the Minister’s written submissions prepared for the hearing of this matter and reminded the applicant of the hearing today at 10.15am in the court premises here at John Maddison Tower.  The letter included the sentence:

   If you do not attend the hearing, either in person or by legal representative, we are instructed to seek to have your matter dismissed with costs.

   [1] exhibit R1

5. There is no explanation for the failure of the applicant to attend today’s hearing. In view of the circumstances, the Minister seeks the dismissal of the application on account of the applicant’s non-attendance pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules). I will so order.

6. In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $4,000.  I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

7. I will, in addition, direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be sent by ordinary pre-paid post to the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  1 February 2013