SZTRK v Minister for Immigration

[2014] FCCA 1849

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1849

Catchwords:
MIGRATION – Originating application seeking review of a decision of the Refugee Review Tribunal – no appearance by the applicant – application dismissed pursuant to Rule 13.03C(1)(c).

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.03C

Migration Act 1958 (Cth), s.476

Applicant: SZTRK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3155 of 2013

Judgment of: Judge Nicholls

Hearing date: 26 February 2014

Date of Last Submission: 26 February 2014

Delivered at: Sydney

Delivered on: 26 February 2014

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondents: Mr M Nelson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 18 December 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 3155 of 2013

SZTRK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. On 18 December 2013 the applicant in this matter made an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 December 2013, which affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.

2. The applicant is a national of Nepal (see at “Court Book” – “CB” 3). He arrived in Australia on 26 September 2010 as the bearer of a student visa (CB 3). The applicant applied for a protection visa on 15 May 2012 (CB 1 to CB 46).

3. On the day of making his application, the Court’s Registry notified the applicant that the first Court date in this matter was set down for 12 February 2014 at 9.30 am.

4. On 12 February 2014 the applicant, who appeared in person, indicated his intention to withdraw his application. I made an order adjourning the directions to 19 February 2014 at 9.30am to allow the applicant the opportunity to file a “Notice of Discontinuance” pursuant to the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) [r.13.01]. No notice of withdrawal had been filed.

5. When the matter was called on that day, there was no appearance by the applicant. I made an order on that day adjourning that directions listing again to 9.30am on 26 February 2014. When the matter was called today, there was again no appearance by the applicant. I note it is now 45 minutes past the scheduled time. I am satisfied on what is before me that the Minister’s application for dismissal pursuant to r.13.03C(1)(c) of the Rules should be granted. The applicant’s failure to appear is consistent with his intention to withdraw.

6. I am satisfied that the applicant had notice of the Court event today given what is set out in the Respondent’s Exhibit 1.  The applicant has not appeared. It is therefore appropriate that I make that order that the Minister seeks. 

7. Further, it is appropriate that an order for costs be made in this matter. There is nothing arguing against the making of that order that I can see. As to the amount, I am satisfied in accepting submissions made to me today by the Minister’s solicitor that the appropriate amount is as set out in the relevant schedule to the Rules of this Court and, in particular, I note that this matter has proceeded beyond the first Court date given the multiple occasions the matter has come before the Court and there has been no appearance at any of them by the applicant. I will make both orders.

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

Associate: 

Date: 18 August 2014