SZTCQ v Minister for Immigration & Border Protection

[2014] FCCA 1533

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCQ & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1533

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) rr.13.03C, 44.12

First Applicant: SZTCQ

Second Applicant: SZTCR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1701 of 2013

Judgment of: Judge Emmett

Hearing date: 16 July 2014

Date of Last Submission: 16 July 2014

Delivered at: Sydney

Delivered on: 16 July 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitor for the Respondent: Mr Andras Markus
Australian Government Solicitors

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1701 of 2013

SZTCQ

Applicant

SZTCR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 24 July 2013, be dismissed by reason of the failure of the applicants to appear at today’s scheduled hearing. The first named applicant is the primary applicant (“the Applicant”). The second named applicant is the Applicant’s wife and her claims are wholly dependent on those of the Applicant.

2. In support of the application, the solicitor for the first respondent, Mr Markus, tendered a letter, dated 10 July 2014, addressed to the applicant’s at their address for service in Australia, from the solicitors for the first respondent. That letter was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed by way of service, a copy of the first respondent’s submissions and reminded the applicants that the proceeding is listed for hearing today at 10:15am, and provides the address and the location of the courtroom.  Exhibit 1R further informs the applicants that if they fail to appear at the hearing, orders may be sought that their application be dismissed with costs.

4. On 19 September 2013, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”), unless the Court is satisfied that the RRT’s decision, dated 26 June 2013, is affected by a mistake that goes to the jurisdiction of the RRT. I also explained to the applicants that the grounds of their application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

5. At the directions hearing, the applicants were provided with a copy of the applicable costs schedule of the Court and I explained to them the consequences that would flow to them if a costs order was made against them.

6. The applicants elected to participate in the Court’s then RRT legal advice scheme, and I note that the applicants received advice in accordance with that scheme on 11 November 2013.

7. The applicants confirmed at the directions hearing, on 19 September 2013, that they wished to continue with their application for judicial review. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 31 October 2013, and were directed to file and serve submissions in support of their application two weeks before the scheduled hearing.

8. At the directions hearing, on 19 September 2013, the matter was set down for final hearing on 17 July 2014 at 10:15am before me.  The orders made on 19 September 2013 also informed the applicants that in the event there was no appearance by or on behalf of them at the time of any scheduled court event their application may be dismissed without further notice.  There has been no document filed by or on behalf of the applicants, either in accordance with those directions, or otherwise. 

9. I note that on 21 February 2014, my Chambers wrote to the applicants at both addresses provided by them on their application informing them that the matter was listed for hearing today at 10:15am.  The details in those letters in terms of the date, time and location are the same as in Exhibit 1R.

10. The matter has been called outside on at least two occasions this morning, the most recent being less than five minutes ago.  There has been no communication received from the applicants, or anyone on behalf of the applicants, either by this court or by the first respondent, seeking an adjournment of today’s hearing, or for any other reason.

11. In the circumstances, I am satisfied that the applicants are aware of today's scheduled hearing and, for whatever reason, have chosen not to attend.

12. In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.

13. Accordingly, the proceeding before this Court, commenced by way of application filed on 24 July 2013, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicants to appear at today’s scheduled hearing.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             18 July 2014