SZSJO v Minister for Immigration

[2013] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 472

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no appearance by applicant at Court event – application dismissed for non appearance.

Legislation:

Migration Act 1958 (Cth), s.476
Federal Circuit Court Rules2001 (Cth), r.13.03C

Applicant: SZSJO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2939 of 2012

Judgment of: Judge Nicholls

Hearing date: 27 May 2013

Date of Last Submission: 27 May 2013

Delivered at: Sydney

Delivered on: 27 May 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Ms B Rayment

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application made on 12 December 2012 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3239.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2939 of 2013

SZSJO

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today application made on 12 December 2012, pursuant to s.476 of the Migration Act1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 8 November 2012, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. At the first Court date, on 13 February 2013, the applicant appeared in person. An interpreter in the Nepali language was made available to her. However the applicant indicated that she was “happy” to proceed in the English language.

3. At that time I sought to explain to the applicant that the Court was concerned with jurisdictional error and did not have the power to intervene to consider the merits of her claim to protection in this country. Further, that, on its face, the grounds of her application failed in any substantial, or indeed in anyway, to assert jurisdiction error.

4. The applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. In light of that, orders were made giving the applicant the opportunity to file and serve any amended application, and any evidence in support. At that time, I urged the applicant to attend to the lawyer and listen very carefully to what was said.

5. I note that, since that time, a Certificate has been placed on the Court’s file from Terrence Michael Ower, counsel, who has appeared before the Court and has experience in matters of this type. That Certificate provides that he met with the applicant, and that advice written advice was provided to her.

6. Despite the orders that were made at the first Court date, and the opportunity to access legal advice, nothing further has been put before the Court by the applicant.

7. I note that at that time, amongst the orders that I made in the applicant’s presence, the matter was set down to return before the Court today at 2.15pm in this courtroom. When the matter was called today, there was no appearance by the applicant. I note for the record that it is now approximately eight minutes past the scheduled hour.

8. I am advised by the Minister’s solicitor, Ms Rayment, who appeared today, that there has been no communication with the Minister by the applicant. I accept that from the bar table.

9. I note also that there has been no communication from the Court’s Registry that the applicant sought any adjournment of the proceeding today, nor any notification of any difficulty in attending today.

10. In all, I am satisfied that the applicant had notice that her matter was before the Court today and that she had notice of the Court location. Her absence today remains unexplained and, in the circumstances, it is appropriate that the application be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

11. Ms Rayment today also sought an order from the Court that the applicant pay some of the Minister’s legal costs that have been incurred in responding to the applicant. I note in that regard that I cannot see any argument against making the order, it must be said, in the usual way.

12. As to the amount, the amount sought is that set out in the relevant Schedule to the Rules of this Court as being, as I take it, a useful guideline as to what is reasonable in the circumstances. In any event, I am satisfied, having regard to the work actually done by the Minister’s solicitors, that the amount sought is reasonable. I will also make that order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.

Date:  7 June 2013