SZTOM v Minister For Immigration and Anor (No.2)

[2014] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOM v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 3197

Catchwords:
MIGRATION – Application in a Case – no appearance by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: SZTOM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2930 of 2013

Judgment of: Judge Nicholls

Hearing date: 21 May 2014

Date of Last Submission: 21 May 2014

Delivered at: Sydney

Delivered on: 21 May 2014

REPRESENTATION

Applicant: No Appearance

Solicitors for the Respondents: Ms R Jones of Australian Government Solicitor

ORDERS

1. The Application in a Case made on 31 March 2014 is dismissed for non-appearance pursuant to Rule 13.03C(1)(d) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2930 of 2013

SZTOM

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 in a Case (“AIC”) filed by the applicant on 31 March 2014. I am satisfied on the evidence before me that the applicant has had reasonable notice of the date, time and place for the adjourned hearing of his AIC, being that the applicant filed his application on 31 March 2014.

2. The Court’s Registry listed the AIC to be heard at 11am, 14 May 2014. That was indicated by a stamp on the face of the applicant’s AIC. In his AIC, he sought to set aside orders made by this Court dismissing an application made by the applicant pursuant to s.476 of the Migration Act 1958 (Cth) seeking review of the decision of the Refugee Review Tribunal made on 29 October 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

3. The substantive originating application was set down for first Court date on 18 December 2013. The applicant did not appear at this Court event, and the Court made orders dismissing that application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

4. As stated above, the AIC was set down for hearing on 14 May 2014 at 11am, by the Registry of this Court. The applicant did not appear at that time.  I adjourned that Court event until today at 9.30am.

5. When the matter was called today, there was no appearance by or for the applicant. I am satisfied, and note the evidence before me, that reasonable proper attempts have been made to notify the applicant of the adjourned date today. 

6. In particular, I note that while the respondent’s exhibit two (“RE2”) was sent to an address which, on the face of it, appears to be the applicant’s address for service, and the only address for service the applicant has provided in relation to his AIC, nonetheless, the letter was returned as “undeliverable”. Further, that respondent’s exhibit three (“RE3”), which is a letter from the Court sent to the applicant to that same address, on the best view of what is available to me on the Court’s file, has not been returned to the Court. 

7. I am satisfied that the Minister’s application today for summary dismissal of the AIC should be granted. As this is a dismissal of an AIC, which seeks to set aside an order at an interlocutory stage, I am satisfied that the application should be dismissed pursuant to r.13.03C(1)(d) of the FCC Rules. I will make that order accordingly.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 10 December 2015