SZUNP v Minister for Immigration & Border Protection

[2014] FCCA 1932

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1932

Catchwords:
MIGRATION

PRACTICE & 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) r.13.03C
Migration Act 1958 (Cth) s.477

Applicant: SZUNP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1662 of 2014

Judgment of: Judge Emmett

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent: Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1662 of 2014

SZUNP

Applicant

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 19 July 2014, be dismissed both as an incompetent application, as it was made more than 35 days from the date of the Refugee Review Tribunal (“the RRT”) decision, which is dated 14 May 2014, and pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled directions hearing.

2. In support, the first respondent’s solicitor, Ms Stone, tendered a letter dated 2 July 2014 from the solicitors for the first respondent to the applicant at the applicant’s address for service in Australia. That letter was marked exhibit 1R.

3. Exhibit 1R informs the applicant of the time, date and location of today’s directions hearing and also informed the applicant that if the applicant did not attend, that the first respondent may seek to have the matter dismissed with costs for non-appearance.

4. I note that on the application filed on 29 June 2014, the location, date and time of today’s directions hearing are clearly marked. The application appears to be signed by the applicant. The directions hearing was set for noon today. It is now 12.24pm. The matter has been called on at least two occasions outside, the most recent being less than five minutes ago. In the circumstances, I am satisfied that the applicant is aware of the proceeding before the Court today and, for whatever reason, has chosen not to attend.

5. As it presently stands, the application is incompetent unless an order was made pursuant to s.477(2) of the Migration Act1958 (Cth) extending time to the applicant to seek judicial review of the decision of the RRT dated 14 May 2014.

6. In the circumstances, the proceeding is incompetent and should otherwise be dismissed 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, with costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 18 September 2014