SZRUP v Minister for Immigration

[2012] FMCA 1239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRUP v MINISTER FOR IMMIGRATION & ANOR 1239

MIGRATION – No appearance by the applicant – application dismissed pursuant to Rule 13.03C(1)(c).

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

Applicant: SZRUP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2059 of 2012

Judgment of: Nicholls FM

Hearing date: 12 December 2012

Date of Last Submission: 12 December 2012

Delivered at: Sydney

Delivered on: 12 December 2012

REPRESENTATION

The Applicant: No appearance

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 21 September 2012 is dismissed pursuant to Rule 13.03C(i)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2059 of 2012

SZRUP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. The matter has been called today and there is no appearance by, or for, the applicant. The applicant made this application on 21 September 2012 pursuant to s.476 of the Migration Act 1958 (Cth) seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. The applicant attended a first Court date before the Court on 10 October 2012. At that time I made the usual, but comprehensive, set of orders providing the applicant with an opportunity to file an amended application and any evidence by way of affidavit. The applicant was also referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” for advice in this matter.

3. I note from the Court’s file a certificate from Mr Mark Campbell, a lawyer on the panel of that Scheme. He certifies that he met with the applicant on 7 November 2012 and that written advice was subsequently provided to the applicant. I also note that at the first Court date, orders were made setting this matter down for further directions (or “call-over”) today. The order specified that the matter was set down for directions on Wednesday, 12 December 2012 at 11.15 am here in the same Court in which the applicant had appeared on the previous occasion. The applicant was present when that order was made. I am satisfied that a signed and sealed version of the orders was sent to the applicant at his address for service. 

4. When the matter was called at 11.15am there was no appearance by the applicant. It is now well past that time. There has been no communication that I am aware of by the applicant to the Court’s Registry explaining his inability to attend or seeking any adjournment of the matter today.

5. Given the applicant’s unexplained absence and in circumstances where he has been given actual notice in person, I am satisfied that the applicant has had reasonable notice. That provides the basis for me to agree with the Minister that the matter should be dismissed pursuant to r.13.03C(i)(c) of the Federal Magistrates Court Rules2001 (Cth). I will make an order accordingly.

Costs

1. The Minister also applies for an order for costs. 

2. In my view, in the circumstances, it is appropriate that an order for costs be made. Plainly when regard is had to the work done by the Minister in this matter, for Court appearances, filing and serving of multiple copies of the Court Book, response, attendances in Court and the like, there is nothing to argue against the making of the costs order. I am satisfied, on what is before me, that the amount sought is a reasonable amount. 

3. It is not for the Court to speculate as to what advice the applicant may have been given. That is a matter for him and the lawyer, but there was an opportunity, if the applicant had chosen not to prosecute his proceedings, that he could have sought discontinuance of the proceedings which may have resulted in some lessening of the amount of costs incurred by the Minister. The applicant has chosen not to do so. That is a matter for the applicant.

4. Therefore there are two orders that I make today in this matter.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  25 January 2013