SZTEJ v Minister for Immigration

[2014] FCCA 245

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 245

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no appearance by applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 44.12

Applicant: SZTEJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1848 of 2013

Judgment of: Judge Nicholls

Hearing date: 7 February 2014

Date of Last Submission: 7 February 2014

Delivered at: Sydney

Delivered on: 7 February 2014

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application made on 7 August 2013 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 $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1848 of 2013

SZTEJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Judgment)

1. I have before me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 7 August 2013, seeking review of the decision of the Refugee Review Tribunal made on 5 July 2013, which affirmed the decision of the Minister’s delegate to refuse to grant a protection visa to the applicant.

2. At the Court event today there has been no appearance by the applicant. I note that the matter was set down for a “show cause” hearing pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), 7 February 2014, today, at 10.15am. It is now well after 10.40am on the relevant date. When the matter was called there was no appearance by the applicant. Ms Francois of counsel appeared for the first respondent.

3. The Minister seeks dismissal of the application pursuant to r.13.03C(1)(c) of the Rules in light of the applicant’s non-appearance.

4. I take into account that the applicant was present at the first Court date in this matter, on 16 October 2013, when orders were made, amongst others, setting the matter down for a show cause hearing today, pursuant to r.44.12(1)(a) of the Rules.

5. I take into account the respondent’s Exhibit 1, a letter from the Court, dated 23 January 2014, addressed to the applicant, and the solicitors for the first respondent, at their respective addresses for service, which provided the exact venue of the Court event today. I have received no communication from the Registry of this Court that the applicant has made any attempt to contact the Registry to either seek an adjournment, or to otherwise explain his inability to attend the Court event today.

6. In the circumstances, I am satisfied the applicant had reasonable notice of the time, date and location of the Court for the hearing today.

7. The question now is how the Court should proceed. There are two options contemplated by the Rules of this Court. One option is to proceed pursuant to r.13.03C(1)(e), which is to proceed with the show cause hearing. The other option is to proceed under r.13.03C(1)(c) of the Rules to dismiss the application on the basis of the applicant’s failure to attend the Court event today.

8. While there are arguments for and against both of these courses of action, I am of the view that in this case the most reasonable course is to dismiss the application for want of appearance. The reason for that is that there is nothing before the Court to show that the applicant was specifically on notice that any failure to attend today may lead to the hearing proceeding in his absence. A further reason is that r.16.05 provides, notwithstanding whether we proceed to a hearing or not, that the applicant could seek that any orders made be set aside.

9. In all the circumstances, it is appropriate that I make an order that the application be dismissed pursuant to r.13.03C(1)(c) of the Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  17 February 2014