SZTTH v Minister for Immigration

[2016] FCCA 438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 438

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

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.13.03

Applicant: SZTTH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3349 of 2014

Judgment of: Judge Nicholls

Hearing date: 22 February 2016

Date of Last Submission: 22 February 2016

Delivered at: Sydney

Delivered on: 22 February 2016

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 2 December 2014 is dismissed for

   
   

   non-appearance 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 $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3349 of 2014

SZTTH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 2 December 2014 pursuant to s.476 of the Migration Act 1958 (Cth) seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 10 November 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

2. The applicant’s matter first came before a Registrar of this Court in January 2015.  There does not appear to have been any appearance by the applicant at that time. Nonetheless, the applicant did appear before a Registrar when the matter was listed for mention on 5 November 2015. On that date the matter was listed by the Registrar for directions before me on 11 December 2015. The applicant was present when that order was made, and a notation on the Court’s file indicates she was assisted by an interpreter at that time.

3. On 11 December 2015 there was no appearance by, or on behalf of, the applicant. Nonetheless I set the matter down for hearing today at 2.15pm.  When the matter was called there was no appearance by, or on behalf of, the applicant.  No explanation has been formally put before the Court as to any difficulty that the applicant may have had in appearing today and no adjournment has been sought. 

4. I am satisfied that the applicant had reasonable notice of the Court event today, given the document that I have marked as respondent’s exhibit 1 (“RE1”).  The document is a printed version of email correspondence between the applicant and the Minister’s solicitor. The applicant’s email, sent from a particular email address, is in response to an email sent to that address by the Minister’s solicitor. The email from the Minister notes, amongst other things, that the matter has been set down for hearing before me on 22 February 2016.

5. The email from the applicant was, in large part, in Mandarin characters. With the assistance of Madam Interpreter today, I am satisfied that there was nothing in that document that could be said to be a request for an adjournment of this hearing by the applicant. 

6. I should also note that no other address for service has been provided by the applicant, other than the address initially notified on her application. In that regard, I am satisfied that the communications directed to that address, confirming today’s hearing, are a sufficient basis for me, in the absence of any other address for service, to proceed to consider the Minister’s application for the dismissal of the substantive application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

7. Therefore, it is appropriate that the matter be dismissed.  As to the matter of costs, I am satisfied that an order for costs should be made in the usual way and the amount sought is, in my view, a reasonable amount.  I will make that order. I will make those two orders.

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

Date: 2 March 2016