SZUEM v Minister for Immigration

[2016] FCCA 919

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 919

Catchwords:
PRACTICE & PROCEDURE – Dismissal for non-attendance.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C

First Applicant: SZUEM

Second Applicant: SZUEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 976 of 2014

Judgment of: Judge Cameron

Hearing date: 30 March 2016

Date of Last Submission: 30 March 2016

Delivered at: Sydney

Delivered on: 30 March 2016

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondent: Ms H. Dejean of Australian Government Solicitor

ORDERS

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

2. The applicants pay the first respondent’s costs fixed in the amount of $3,416.00

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 976 of 2014

SZUEM

First Applicant

SZUEN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. At its first court date on 12 May 2014, this matter was listed for callover on 8 October 2014.  The first applicant was present at the callover and the matter was listed for a show cause hearing on 11 March 2016.  On 9 March 2016 the first applicant wrote to the Court by email enclosing a medical certificate which said that he was unable to attend court in the period 7 March 2016 to 18 March 2016 inclusive.  In light of that medical certificate, the Minister consented to the first applicant’s implicit application for an adjournment and the matter was relisted for hearing today, 30 March 2016, at 2:15pm. 

2. Yesterday evening at 6:52pm the first applicant wrote again to the Court by email, once more enclosing a medical certificate.  That medical certificate stated that the first applicant was receiving specialist medical treatment at Griffith Base Hospital for malignant hypertension and “for the period of 29/03/2016 to 1/05/2016 inclusive, he will be unfit to travel”.  In response, my associate wrote to the first applicant by email earlier today to advise him that he was granted leave to appear at today’s hearing by telephone. 

3. Before I came on the bench at 2:15pm my associate endeavoured to contact the first applicant on the two mobile telephone numbers which he has provided to the Court, the first being noted on the initiating application filed on 9 April 2014 and the other being noted on the affidavit filed in support of the initiating application.  I am informed that one telephone call went straight to voicemail and that the other was answered by a person who said that they were not the first applicant. 

4. The matter was called outside the court at 2:15pm and there was no appearance by or for the applicants. The Minister has sought dismissal of the matter pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”). In the circumstances, I am satisfied that it is appropriate to make the order which the Minister seeks.

5. It is also appropriate that costs follow the event and the Minister seeks an amount of $3,416, which I infer is the scale amount provided by the Rules. Given the longevity of the matter, it seems to me that the sum sought by the Minister is a very reasonable one.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  22 April 2016