SZSFZ v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 1003

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFZ v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1003

Catchwords:
MIGRATION – Refugee Review Tribunal.
PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation: 
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c).

Applicant: SZSFZ

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2710 of 2012

Judgment of: Judge Emmett

Hearing date: 31 July 2013

Date of Last Submission: 31 July 2013

Delivered at: Sydney

Delivered on: 31 July 2013

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the First Respondent: Mr Julian Pinder

Solicitors for the First Respondent: Minter Ellison

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2710 of 2012

SZSFZ

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this court, commenced by way of application filed on 22 November 2012, be dismissed with costs pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of that application, the first respondent read two affidavits.  The first affidavit is by Ms. Laura Francis Weston, affirmed 30 July 2013.  Of particular relevance is an annexure to Ms. Weston’s affidavit of a letter, dated 29 July 2013, from the first respondent’s solicitors sent to the applicant at the addresses that the applicant provided to the Court. The substance of that letter advised the applicant that the matter was set down for hearing on 31 July 2013.  It noted that there was a request made by the applicant for an adjournment of the matter and that the request had been refused. 

3. I will now outline a brief history of this matter. 

4. The initiating application was filed on 22 November 2012.  The only grounds identified are as follows:

   “(1) The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act.

   (2) The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of his claim.”

5. The applicant attended a directions hearing before me on 22 February 2013.  On that occasion, I explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an area capable of review by this Court.  I explained to the applicant that if he was unsuccessful in his application that he was likely to be ordered to pay costs in accordance with the costs schedule of this Court and the applicant was provided with that costs schedule.  The applicant was also provided with contact details of legal services, providers, and translating and interpreting services. 

6. At that directions hearing, the applicant confirmed that he wished to continue with his application for judicial review of a decision of the Refugee Review Tribunal (“RRT”), dated 25 October 2012, which affirmed the decision of a delegate of the first respondent to refuse the applicant a protection visa. 

7. The applicant elected to participate in the Court’s Legal Advice Scheme and I note that advice was provided to the applicant in accordance with that scheme on 18 March 2013. 

8. The applicant was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon, by 12 April 2013. The applicant was also directed to file and serve by way of affidavit any additional evidence upon which he relied, including any transcript of the RRT hearing, by 12 April 2013.  The applicant was also directed to file and serve written submissions 14 days before the hearing and the matter was set down at that time for final hearing on 26 July 2013 at 10.15am. However, no document was filed by or on behalf of the applicant either in accordance with those directions or otherwise.

9. On 15 July 2013, the first respondent filed a written outline of submissions opposing the relief sought by the applicant.

10. On 22 July 2013, the applicant attended Court for the scheduled hearing. However, for unrelated reasons, the hearing was unable to proceed that day. At the Court, the applicant was given a letter by my Associate informing him that the matter was relisted for hearing today at 10:15am.

11. A second affidavit, sworn 30 July 2013 by Mr. Julian Darcy Pinder was read by the first respondent. Mr Pinder deposed to various conversations that he had with persons whom he believed to be friends of the applicant. Mr. Pinder advised those persons that the hearing would proceed today and that if the applicant did not attend, his application may be dismissed without further notice. It is to be noted that Mr. Pinder spoke with those persons on the contact telephone number supplied by the applicant in his address for service. 

12. There has been no evidence received by this Court or by the first respondent from the applicant to support any application for adjournment.

13. There is a suggestion that the applicant did not have the funds to attend Court today as he lives in Griffith.  Plainly, that is not a satisfactory explanation such that the applicant should be granted a further adjournment on that basis. 

14. In the circumstances, I am satisfied that the applicant is aware of today’s hearing, and is aware of the consequences that may flow to him in the event he did not attend today’s hearing. Accordingly, the proceeding before this Court, commenced by way of application filed on 22 November 2012, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  11 September 2013