SZSYX v Minister for Immigration

[2013] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1642

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal on account of the applicant’s non appearance.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSYX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1391 of 2013

Judgment of: Judge Driver

Hearing date: 16 October 2013

Delivered at: Sydney

Delivered on: 16 October 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms B Rayment

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

4. 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 to the applicant’s last known residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1391 of 2013

SZSYX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 5 June 2013 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 1 May 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The judicial review application asserts jurisdictional error in very general terms:

   1. There are some jurisdictional errors in RRT decision.

   2. The member did not act accordingly to the law in assessing complementary protection criterias.

2. The application is supported by an affidavit which simply annexes the Tribunal decision. 

3. The matter came before me for first court date directions on 17 July 2013.  The applicant attended in person on that day.  The assistance of a Bengali interpreter was available to him although he apparently did not require it.  He was at that time being held in immigration detention.

4. I made orders at that time for the filing of additional material and listed the matter for a show cause hearing today.  Nothing further has been filed by or on behalf of the applicant.  I note from the correspondence file that Mr David Burwood of counsel attended the Villawood Immigration Detention Centre on 27 August 2013 in order to provide advice to the applicant pursuant to the Minister’s panel advice scheme.  This was a conference arranged on that day for 11.00am.  The applicant was paged four times but did not attend.  Mr Burwood sent written advice to the applicant and noted that the applicant speaks English. 

5. The solicitor for the Minister has advised that the applicant was released from immigration detention on 24 September 2013 apparently on the condition that he applied for a spouse visa by today.  Apparently the solicitor’s instructions are that no such visa application has been made. 

6. The applicant has not attended today’s hearing when called.  The matter has been called twice.  Prior to me coming on the bench my associate telephoned the applicant’s nominated telephone number and spoke to a male person who identified himself by name as the applicant.  He informed my associate that he was on his way to court, although late.  I waited approximately 30 minutes before coming on the bench.  Immediately prior to doing so my associate rang the telephone number a second time.  On this occasion the telephone was not answered.  My associate heard a recorded voice mail message apparently from a person bearing the name “Rajeet”.  There is no further explanation for the applicant’s non-attendance. 

7. The judicial review application is meaningless without particulars of some jurisdictional error.  None have been asserted.  In the circumstances, the Minister seeks dismissal of the application on account of the applicant’s non-attendance.  I agree.

8. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

10. 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 to the applicant’s last known residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 23 October 2013