SZSMJ v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 1002

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMJ v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1002

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: SZSMJ

First Respondent: MINISTER FOR IMMIGATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 36 of 2013

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

Solicitors for the Applicant: Mr Oliver Jones (Clayton Utz)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 36 of 2013

SZSMJ

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 11 January 2013, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support of the application, the first respondent tendered a letter, dated 10 July 2013, issued to the applicant’s address for service, and an email, dated 24 July 2013, sent by the first respondent to an email address provided by the applicant.

3. The letter is marked Exhibit 1R. Exhibit 1R enclosed by way of service, the first respondent’s outline of submissions to the applicant and advised the applicant of the hearing date, time, and location of the hearing listed on 22 July 2013.  The letter also advised the applicant, if the applicant did not attend, the matter may be dismissed with costs or proceed without him. 

4. The email, sent on 24 July 2013, was sent to the email address provided by the applicant on his application for review to the Refugee Review Tribunal (“RRT”), lodged on 20 July 2012. This email is marked exhibit 2R on the first respondent’s application this morning.  Exhibit 2R advises the applicant of the re-scheduled hearing this morning and again gives the details of the time and location of this courtroom.

5. The applicant attended a directions hearing before me on 18 March 2013. At this time, the applicant was given leave to file and serve an amended application and any evidence by way of affidavit by 13 May 2013. Additionally, the applicant was directed to file and serve written submissions 14 days before the hearing.

6. The applicant confirmed that he wished to proceed with his application at that directions hearing.  It was explained to the applicant at the time, that the ground of his application identified no error capable of review by this Court and based on those grounds alone, he was unlikely to succeed.  The cost consequences that may flow to him, if he was unsuccessful, were explained to him and a copy of the costs schedule given to the applicant. 

7. The grounds of review identified in the application are as follows:

   “1. RRT has bias against me.

   2. I was not afforded procedural fairness.

   3. My evidence was not heard.”

8. At the directions hearing, the applicant was informed that he was able to participate in the Court’s legal advice scheme and was provided with the contact details of legal services providers and translating and interpreting services, in documents headed in his own language. On 3 April, the applicant was contacted by the Legal Advice Service (NSW) advising him of the name of his legal advisor. By way of letter dated 22 July 2013, the allocated legal advisor confirmed that he had contacted the applicant to make arrangements to meet him and provide him advice, however the applicant declined to make any arrangements with him.  

9. At the directions hearing held on 18 March 2013, the matter was set down for hearing on 22 July 2013, at 10.15am. That hearing date was to be heard at a different location this Court. However, on 4 July 2013, a letter was written to the applicant, advising him of the new address and location of the courtroom, and confirming the date and time.  That letter was returned to the Court unopened and the applicant failed to attend the scheduled hearing on 22 July 2013.  However, the matter was set down for further hearing today and a letter was sent to the applicant on 22 July 2013, advising him of today’s hearing date, time, and location.

10. It is now 10.46 am.  The applicant has been called on at least two occasions, outside the Courtroom.  There has been no appearance by the applicant.  There has been no communication received from the applicant, either by the Court or by the first respondent or the first respondent’s solicitors, seeking any adjournment or for any other reason.  In the circumstances, I am satisfied that the applicant is aware or should be aware, of today’s scheduled hearing and for whatever reason, has chosen not to attend.

11. The circumstances, the orders sought by the first respondent are appropriate, and accordingly the proceeding before this Court commenced, by way of application filed on 11 January 2013, should be dismissed with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:  8 August 2013