SZRUQ v Minister for Immigration

[2012] FMCA 1104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRUQ v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1104

MIGRATION –Refugee Review Tribunal – no appearance by the applicant at the first court date – grounds do not disclose any error capable of review – application dismissed.

Federal Magistrates Court Rules (Cth) r 13.03C(1)(c)
Migration Act 1958 (Cth), ss. 425, 426A

Applicant: SZRUQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2061 of 2012

Judgment of: Emmett FM

Hearing date: 14 November 2012

Date of Last Submission: 14 November 2012

Delivered at: Sydney

Delivered on: 14 November 2012

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the 1^st Respondent: Mr R. O’Shannessy

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2061 of 2012

SZRUQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The respondent seeks an order that the proceeding before this Court commenced by way of application filed on 21 September 2012 be dismissed pursuant to rule 13.03(1)(c) of the Federal Magistrates Court Rules by reason of the applicant’s failure to appear at today’s scheduled hearing.  In support of the application, the first respondent’s solicitor, Mr O’Shannessy, tendered a letter dated 2 November 2012 from the first respondent’s solicitors to the applicant.  That letter was marked exhibit 1A on the respondents’ application this morning.  I note that the letter is addressed to the applicant at both the post office box provided by the applicant on the application filed on 29 September 2012 and the applicant’s residential address.

2. The letter informed the applicant of the time and date of today’s scheduled hearing. I note that the letter does identify courtroom 12.1 on level 12 at 80 William Street whereas, in fact, the courtroom in which I am sitting today is court 10.2 on level 10. However, the letter also informs the applicant that the courtroom may be subject to change by the court. The letter informs the applicant that if the applicant does not appear at the first court date, that the first respondent may apply to have the matter dismissed pursuant to rule 13.03C(1)(c) of the rules with costs. The letter also enclosed by way of service the bundle of relevant documents filed by the first respondent on 2 November 2012.

3. The application filed by the applicant provides a telephone number.  In court, the solicitor for the first respondent rang that telephone number with the assistance of the interpreter.  The telephone number rang through to a message bank.

4. I note that the grounds of the application are as follows:

   1) I was sick during my interview date.

   2) I request for another date.

   3) My request was refused and it’s unfair.

5. Those grounds plainly do not disclose any error capable of review by this Court, and based on those grounds alone, the application would be unsuccessful.  I note that the application, filed on 21 September 2012, clearly has today’s date and time and the address of the Court, although does not specify the court room.

6. At the same time as the applicant filed the application, the applicant also filed an affidavit sworn 18 September 2012 annexing the decision of the Refugee Review Tribunal dated 20 August 2012. I note that the first respondent filed a response on 2 October 2012 opposing the grant of relief sought by the applicant in the application on the basis that the decision of the Refugee Review Tribunal is not affected by jurisdictional error. I note that the response states that the applicant was invited to appear before the Refugee Review Tribunal in accordance with section 425 of the Migration Act 1958 (Cth) and that the applicant failed to attend the scheduled hearing, resulting in the Refugee Review Tribunal making a decision under section 426A(1) of the Migration Act to proceed to make its decision without taking any further action to enable the applicant to appear before it.

7. There has been no communication received by the first respondent’s solicitors or by this Court on behalf of the applicant seeking an adjournment or for any other reason. In all the circumstances, I am satisfied that the applicant was aware of today’s time and date and that the orders sought by the first respondent are appropriate. 

8. In the circumstances, the proceeding before this court commenced by way of application filed on 21 September 2012 should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules by reason of the failure of the applicant to appear at today’s scheduled directions hearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 22 November 2012