SZTUR v Minister for Immigration

[2015] FCCA 3631

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3631

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Summary dismissal for non-attendance.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C

Applicant: SZTUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 157 of 2014

Judgment of: Judge Cameron

Hearing date: 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Sydney

Delivered on: 16 June 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms A. Wong of DLA Piper Australia

ORDERS

1. Pursuant to rule 13.03C(1)(c) of the Court’s Rules, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,900.

3. The first respondent advise the applicant of orders 1 and 2 and of the terms of rule 16.05 of the Court’s Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 157 of 2014

SZTUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for hearing today at 10:15am.  There was no appearance by or for the applicant.  The matter was stood down until 10:30am to give the applicant time to arrive late should she have had problems reaching the Court on time.  When the matter was called on once more at 10:30am, there was again no appearance by or for the applicant. 

2. The matter was called outside the court at about 10:15am and at 10:30am today.  During the adjournment the matter was also called on the ground floor, level nine and level ten of this building and inquiries were made with the registry in Queens Square and in John Maddison Tower where the Court also sits.  There was nothing to suggest that the applicant had presented herself in either location. 

3. During the adjournment, Ms Wong, who appears for the first respondent (“Minister”), attempted, she advises me, to telephone the applicant but the call went straight to voicemail. 

4. The Minister has sought dismissal of the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

Background facts

1. The matter was listed for its first court date on 24 February 2014.  The applicant appeared in person at that time and the matter was listed for callover on 26 June 2014.  The applicant appeared in person at the callover when the matter was listed for hearing on 18 August 2015.  Subsequently, that hearing date was changed and the matter was relisted to last Wednesday, 10 June 2015. 

2. On 27 April 2015 the Court wrote to the applicant at her address for service identified in her initiating application, in her supporting affidavit and in her first court date form, advising of the hearing date on 10 June 2015 at 2:15pm.  She did not appear on that occasion.  As it appeared that the applicant might not have received the letter advising her of the 10 June 2015 hearing date, the matter was re-listed for today. 

3. On 11 June 2015 my associate rang the applicant on the mobile telephone number identified in her initiating application and affidavit in support and with the assistance of a Nepalese interpreter spoke to a person who identified himself as the applicant’s brother-in-law.  He advised my associate that the applicant was at work but that they had already been notified of the new hearing date and would attend Court today at 10:15am. 

Application for summary dismissal

1. In support of his application to dismiss the application, the Minister has tendered two documents.  The first is a letter from his solicitors to the applicant at an address in Pendle Hill.  That letter advised the applicant of the hearing date today and foreshadowed that if she did not appear, the Minister would seek to have the matter dismissed with costs. 

2. It appears that that letter was preceded by an email chain, which is exhibit 2 to this application, and which has as its initiating step an email, signed by the applicant, advising the Pendle Hill address to which the Minister’s solicitors addressed their letter.  That email was dated 10 June 2015 at 7:51pm.  The second email in that chain is an email from Adele Carr, a solicitor in the office of the solicitors for the Minister, saying in reply that the matter was listed at 10:15am today, and that if the applicant did not attend the matter might be dismissed for non-appearance. 

3. The email chain apparently also enclosed a notice of address for service.  No notice of address for service has been filed subsequent to that email. 

4. On 11 June 2015 the Court also wrote to the applicant at the Pendle Hill address, advising her of the hearing date. 

Conclusion

1. I am satisfied that the applicant has had sufficient notice of today’s date and has chosen not to attend.  In those circumstances, it is appropriate that the matter be dismissed as the Minister seeks. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 24 October 2016