SZTXO v Minister for Immigration & Border Protection

[2014] FCCA 1135

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXO v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1135

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12

Applicant: SZTXO

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 441 of 2014

Judgment of: Judge Emmett

Hearing date: 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Sydney

Delivered on: 30 May 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Mr Mark Wiese
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 441 of 2014

SZTXO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 26 February 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Mr Mark Wiese, tendered a letter dated 28 May 2014, to the applicant from the solicitor for the first respondent, addressed to the applicant’s address for service in Australia as identified in a Notice of Change of Address form, filed in Court on 19 May 2014. That letter was marked ‘Exhibit 1R’.

3. Exhibit 1R informs the applicant of the date, time, and location of today’s scheduled hearing, and further informs the applicant that if the applicant did not attend the hearing, then his matter may be dismissed with costs.

4. On 19 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”), unless the Court is satisfied that the RRT’s decision dated 31 January 2014, is affected by a mistake that goes to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

5. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

6. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

7. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language should he wish to take advice.

8. The matter was listed today for a hearing pursuant to r.44.12 of the Rules and a copy of that rule given to the applicant.

9. There has been no document filed by the applicant either in accordance with those directions or otherwise.

10. The matter was set down for hearing today at 10:00am. It is now 10.35am. The matter has been called at least twice outside, the last occasion being less than five minutes ago.

11. There has been no communication received by or on behalf of the applicant, either from the Court or the first respondent's solicitor, seeking an adjournment of today's hearing, or for any other reason.

12. In the circumstances, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.

13. I am satisfied that the orders sought by the first respondent are appropriate.

14. Accordingly, the proceeding before this Court, commenced by way of application filed on 26 February 2014, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             6 June 2014