SZSYA v Minister for Immigration

[2014] FCCA 1850

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1850

Catchwords:
MIGRATION – Originating application seeking review of a decision of the Refugee Review Tribunal – no appearance by the applicant at final hearing – application dismissed pursuant to Rule 13.03C(1)(c).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), s.476

Applicant: SZSYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1328 of 2013

Judgment of: Judge Nicholls

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Sydney

Delivered on: 14 March 2014

REPRESENTATION

Applicant: No appearance

Appearing for the Respondents: Ms L Stewart

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The title of the first respondent be amended to read “Minister for Immigration & Border Protection”.

2. The application made on 14 June 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs in the amount of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1328 of 2013

SZSYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act1958 (Cth) on 14 June 2013 seeking review of the decision of the Refugee Review Tribunal made on 17 May 2013 which affirmed the decision made by the delegate of the first respondent to refuse a protection visa to the applicant.

2. When the matter was called today there was no appearance by the applicant. The Minister made application through his representative that the substantive application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

3. The relevant evidence before the Court today is Respondent’s Exhibit 1 (“RE1”), being a letter from the first respondent’s solicitors to the applicant dated 6 March 2014 reminding the applicant of the final hearing of the matter today, and putting the applicant on notice that if he did not attend then the Minister would seek to have the matter dismissed with costs. 

4. I should note that the applicant did appear in person with an interpreter in the appropriate language at the first Court date in this matter on 3 July 2013 where orders were made giving the applicant the opportunity to file and serve any additional material. Relevantly, the matter was listed for final hearing today on 14 March 2014 at 10.15am. The applicant was present in Court when that order was made. 

5. Subsequent to that, the Court also made orders on 5 July 2013 that the applicant be referred for legal advice to the then RRT Legal Advice Scheme of New South Wales (“RRTLAS”) notwithstanding the fact that the applicant had provided a more current address indicating that he was resident in Victoria.  It is to the address which the applicant notified that the Minister’s letter (RE1) was directed. 

6. The respondent’s Exhibit 2 (RE2) is a letter from the Court, which the Minister obtained after being granted leave to inspect the Court’s file, dated 24 February 2014, reminding both the applicant and the Minister’s solicitors that the matter had been listed for hearing today at 10.15am and giving the parties the exact location of the courtroom.  That letter also was sent to what was the most recently advised address for service provided by the applicant. 

7. I note also that there is a certificate on the Court’s file that the applicant did receive legal advice after having spoken by telephone to a solicitor on the panel of the RRTLAS. The solicitor who provided the certificate is a solicitor who often appears in matters of this type before this Court. The applicant was subsequently provided with written advice.

8. There is no communication that I am aware of by the applicant to the Court’s Registry seeking any adjournment of the proceedings today, or through the Registry to indicate to the Court any difficulty in attending the hearing. 

9. I understand, albeit from the bar table, that with the assistance of an interpreter in the Punjabi language the Minister’s representative today spoke to the applicant by telephone who confirmed that he would not be attending Court today. He indicated that he lacked funds and therefore was unable to travel. However, no application for an adjournment was made such as to engage the Court’s focus on whether the matter should be adjourned to some future time to enable the applicant to attend. Nor was there any indication given that the applicant would have been in a position in the near future to have travelled to Sydney. Nor, importantly, was any request made for the applicant to attend the hearing by way of telephone. 

10. What is immediately apparent is that the applicant himself made no effort to communicate to the Court or the Court’s Registry of any difficulty in attending today. Some caution must be exercised with what was put to the Court from the bar table. What was said was only in response to an initiative taken by the Minister’s representative with the assistance of the interpreter this morning. Even at its highest, what I understand from what was put, it cannot be said that the applicant was seeking any adjournment of a final hearing of his matter in respect of which he has been on notice since at least 3 July 2013. 

11. I am satisfied that the applicant has had notice of the final hearing of his application today, including the time, the date and the venue, and when the matter was called the applicant did not appear. Whatever explanation has been obtained by the Minister’s solicitor today is not sufficient to cause the Court not to proceed to dismissal of the application today for lack of appearance. I will make the order accordingly.

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

Associate: 

Date: 18 August 2014