SZRXD v Minister for Immigration
[2013] FMCA 144
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRXD v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 144 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no appearance by applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Migration Act 1958 (Cth), s.476 Federal Magistrates Court Rules 2001 (Cth), r.13.03C |
| Applicant: | SZRXD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2206 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 February 2013 |
| Date of Last Submission: | 20 February 2013 |
| Hearing date: | 20 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2013 |
REPRESENTATION
| The Applicant: | No appearance |
| Appearing for the Respondents: | Ms M Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 8 October 2012 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $2,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2206 of 2012
| SZRXD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me an application made on 8 October 2012, pursuant to s.476 of the Migration Act1958 (Cth), seeking review of the decision of the Refugee Review Tribunal, made on 10 September 2012, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
When the matter was called today the applicant did not appear. In these circumstance, the Minister asked that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
When the applicant appeared at the first Court date on 24 October 2012, he did so in person. He was assisted on that day by an interpreter in the Mandarin language.
A number of orders were made at the first Court date for the prosecution of this matter, including the setting down of the Court event today. The applicant, as Ms Stone who appears today for the Minister reminded the Court, was present with the assistance of a Mandarin interpreter and would have had knowledge of the Court event today. But, further to that, I note respondent’s “Exhibit 1” (“RE1”), being a communication to the applicant, sent to both his postal and residential addresses, reminding him of the matter today and, importantly, putting the applicant on notice that if he did not attend then the Minister may seek that the matter be dismissed with costs for non-appearance. This, indeed, is what has happened. When the matter was called again today, at 35 minutes past the scheduled time, there was still no appearance by the applicant.
I note also that, by orders made at the first Court date, the applicant was given the opportunity to file and serve additional material in support of his case. Nothing has been filed by the applicant since that time. I note also that the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. There is a certificate on the Court file from that lawyer that written advice was provided to the applicant on 26 November 2012.
In all the circumstances, I am satisfied that the applicant has had reasonable notice of the matter today. He has not attended. No explanation has been offered to the Court, nor, from what understand, has any notice been given to the Minister’s solicitor. No application or request for an adjournment has been made either through the Court’s registry or otherwise.
It is appropriate that I proceed to consider the Minister’s application for dismissal for want of appearance. I do so, and for the reasons that I have already set out, including the applicant’s lack of what can be described as lack of action in prosecuting his case since his attendance at the first Court date and in circumstances where legal advice was provided to him, I am satisfied that I should proceed to make the order that the Minister seeks.
It is also appropriate that an order for costs be made in this matter. There is nothing before the Court to argue against the making of that order in the usual course. As to the amount, I am satisfied having regard to the work actually done by the Minister’s solicitors, the filing and serving of multiple copies of the Court Book, the formal Response, attendances at Court and the like and the drafting and despatch of RE1, that the amount sought is a reasonable amount.
I will make an order for costs in the amount sought.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 4 March 2013
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