SZUDQ v Minister for Immigration

[2014] FCCA 3191

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3191

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

Legislation:

Migration Act 1958 (Cth), ss.426A, 476

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

Applicant: SZUDQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 886 of 2014

Judgment of: Judge Nicholls

Hearing date: 13 August 2014

Date of Last Submission: 13 August 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Applicant: No Appearance

Solicitors for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The application made on 1 April 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 $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 886 of 2014

SZUDQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me today an application made on 1 April 2014, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 March 2014, which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

2. The applicant in this matter attended at a first Court date on 30 April 2014. At that time he was assisted by an interpreter in the Mandarin language.

3. I made nine orders at the first Court date for the progress of the applicant’s case before the Court. Amongst those orders was that the matter was set down for mention at a call over today at 9.30 am. I note that it is now nearly 45 minutes past the scheduled time of the Court event. When the matter was called there was no appearance by, or for, the applicant. To my knowledge there has been no communication with the Court’s Registry, nor has there been any application for an adjournment made by the applicant. The applicant’s absence today remains unexplained.

4. In these circumstances, the Minister has made application that the substantive application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) in the absence of the applicant.  In all the circumstances, it is appropriate that I make the order that the Minister seeks today.

5. I have in evidence before me respondent’s exhibit one (“RE1”), which is a letter from the Court to the applicant, directed to the address for service provided on the application to the Court, indicating that the matter was set down for mention at a call over today on 13 August 2014.  As stated above, I also note that the applicant was present in Court, with the assistance of a Mandarin interpreter when the orders were made, setting the matter down for mention today. 

6. The applicant was also put on notice on that occasion that if the applicant did not take up the opportunity to file any further material,  that the Minister would seek for an immediate show cause hearing and press for the application to be dismissed. 

7. The applicant has not filed anything further in these proceedings. He was on notice that the Minister would press today for the dismissal of his application in light of what he may, or may not have filed, in prosecution of his application. I am satisfied, in all the circumstances, that the applicant would have been on notice of the possibility of the finalisation of his case today.

8. I note he has taken no steps to prosecute his case, despite the opportunity provided to him. Further, that the applicant did not respond to an invitation, or appear at, an interview before the delegate in relation to his application for a visa. The Tribunal also invited the applicant to a hearing, and, as is plain from the Tribunal’s decision record, which is before me in evidence, the Tribunal proceeded to determine the matter pursuant to s.426A of the Act in the absence of the applicant.

9. In all, the circumstances, it is appropriate that the application be dismissed. I will make that order accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  12 November 2015