SZTLI v Minister for Immigration

[2014] FCCA 956

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 956

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – non appearance of applicant at adjourned show cause hearing.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZTLI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2642 of 2013

Judgment of: Judge Driver

Hearing date: 12 May 2014

Delivered at: Sydney

Delivered on: 12 May 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY ORDERS

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

2. 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).

3. 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 at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2642 of 2013

SZTLI

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 a show cause application filed on 28 October 2013, seeking review of a decision of the Refugee Review Tribunal (Tribunal) made on 27 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China.  His visa application had been rejected by a delegate of the Minister, and he sought review before the Tribunal. 

2. For the purposes of the review application, he provided an address for correspondence of PO Box K1132, Haymarket, New South Wales, 1240.  The Tribunal wrote to the applicant at that address on 15 August 2013 by registered post to advise that it was unable to make a favourable decision on the available material and to invite the applicant to attend a hearing on 27 September 2013[1].  .  The applicant apparently responded to that hearing invitation, declining to attend[2].  The Tribunal, unsurprisingly in the circumstances, found that it had insufficient information in order to make a favourable decision, and affirmed the delegate’s decision. 

   [1] Court Book (CB), 104-105

   [2] CB 113-114

3. The judicial review application contains two template grounds:

   1. RRT have discriminatio[n] on me, failed to consider my evidence and my real situation.

   2.RRT is unfair to me.

4. In the show cause application, the applicant identified the same address for service as he had provided to the Tribunal.  The applicant and I had a brief conversation about that on 20 November 2013 when I made first court date directions in the matter.  In the light of that conversation, I added the following notation to my orders:

   The Court notes that the address for service of the applicant is PO Box K1132, Haymarket, New South Wales 1240.  The Court further notes that the applicant has undertaken that all correspondence sent to that address will be forwarded to him.

5. At that time, I listed the matter for a show cause hearing on 29 April 2014.  There was no personal appearance by the applicant at that time, although the Court was successful in contacting him by telephone.  The applicant told me in that telephone conversation that, notwithstanding his assurance given at the first court date that correspondence sent to his nominated postal address would reach him, he had received no correspondence either from the Court or from the Minister’s solicitors.  In particular, he denied having received the court book, which was filed on 3 December 2013.

6. The applicant asserted that the post office address nominated by him was not his but that of a migration agent.  He said that the migration agent’s family name was Yu.  When I queried whether he was referring to Ms Priscilla Yu, a registered migration agent, he said that he was.  The applicant then proceeded to make allegations against Ms Yu including an allegation that it was not he who responded to the hearing invitation, declining to attend the Tribunal hearing.  In view of the circumstances, I adjourned the show cause application until today.

7. I expressly warned the applicant that if he failed to attend the adjourned hearing, he should expect his application to be dismissed.  The applicant told me, through the interpreter, that he understood.  Given that the applicant had denied receipt of any correspondence, the Minister’s solicitors wrote to him by letter dated 30 April 2014 at a new postal address nominated by him enclosing the court book and other documents relating to these proceedings.  I received that bundle as an exhibit, exhibit R1.  I also have before me the court book. 

8. The applicant has failed to attend today’s adjourned hearing.  The matter has been called twice and there has been no answer to the call.  There is no explanation for the applicant’s non-attendance.  I will, therefore, order that the application be dismissed on account of that non-attendance. 

9. The application having been dismissed, the Minister seeks an order for costs in accordance with the Court scale.  I have no difficulty accepting that submission. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of an 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) (Federal Circuit Court Rules).

11. I will further direct that the Minister arrange to have the orders made today entered, and that the Minister cause a sealed copy of those orders to be served on the applicant by ordinary pre-paid post at his nominated address of service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

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

Associate: 

Date: 13 May 2014