SZSEP v Minister for Immigration

[2013] FMCA 241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSEP v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 241

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of application on account of the applicant’s non appearance.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZSEP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2622 of 2012

Judgment of: Driver FM

Hearing date: 10 April 2013

Delivered at: Sydney

Delivered on: 10 April 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Mr O Jones
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 $3,500.

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 2622 of 2012

SZSEP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 12 November 2012.  The application seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 17 October 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Fujian province in China, and had made claims of religious persecution at the Tribunal;  he was not believed. 

2. The applicant attended in person on 20 December 2012, when this matter was listed before me for first court date directions.  He was assisted by an interpreter in the Mandarin language.  The applicant signed consent orders, including an order listing the matter for a show cause hearing at 2.30pm today.  I was satisfied at the time that the applicant understood the need to attend court for today’s hearing.  I also have before me as an exhibit[1] a letter dated 8 April 2013 from the Minister’s solicitors to the applicant at his nominated postal address for service, enclosing an outline of submissions prepared on behalf of the Minister, and reminding the applicant of today’s court hearing at 2.30pm.  The letter warned the applicant that if he did not attend today’s hearing either in person or by his legal representative, the Minister’s solicitors were instructed to seek to have the matter dismissed with costs. 

   [1] Exhibit R1

3. There has been no appearance by or on behalf of the applicant today.  The matter has been called twice outside court, and on each occasion, there was no answer to the call.  There is no explanation for that non-appearance.  In addition, my deputy associate attempted to contact the applicant by telephone on a mobile telephone number nominated by him on his application, but the call was unsuccessful.  The call was diverted to a message bank facility.

4. In the circumstances, I accept the Minister’s submission that the application should be dismissed on account of the applicant’s non-appearance. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules).

5. In consequence of that dismissal, the Minister seeks an order for costs, fixed in the sum of $3500.  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 $3,500.

6. 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).

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  12 April 2013