SZUOI v Minister for Immigration; SZUOJ v Minister for Immigration

[2014] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOI v MINISTER FOR IMMIGRATION & ANOR
and
SZUOJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1602

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – dismissal of show cause applications on account of the non appearance of the applicants.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUOI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1715 of 2014

Applicant: SZUOJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1716 of 2014

Judgment of: Judge Driver

Hearing date: 23 July 2014

Delivered at: Sydney

Delivered on: 23 July 2014

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents:

Ms A Mannile

Sparke Helmore

INTERLOCUTORY ORDERS

SYG 1715 of 2014

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant and his migration agent by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

SYG 1716 of 2014

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant and his migration agent by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1715 of 2014

SZUOI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

SYG 1716 of 2014

SZUOJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me in these matters judicial review applications by two brothers seeking review of two decisions of the Refugee Review Tribunal (Tribunal) made on 26 May 2014.  The brothers were represented in both matters by the same firm of migration agents.  When the applications were filed on 23 July 2014, the registry allocated a return date of today at 9.30am at Level 6, John Maddison Tower, 88 Goulburn Street, Sydney. 

2. In addition, exhibit R1 is a letter addressed to applicant SZUOI at his nominated address for service in Pyrmont and what is apparently the address of his migration agent in Padstow reminding them of the directions hearing today in this location at 9.30am and advising the applicant that his attendance was required.  The letter addressed to the applicant at his nominated address for service was sent by express post and was returned to sender with the words “moved out” written on it.  It does not appear that the letter addressed to the address in Padstow was returned.

3. In the matter of SZUOJ, correspondence[1] was sent to the applicant at the address in Pyrmont as well as at the address in Padstow and again the envelope is marked return to sender and that the addressee has left that address.  It does not appear that the letter to the agent at Padstow was similarly returned.  That letter is in different terms and advises the applicant of possible legal services providers and provides the Minister’s address for service.

   [1] Exhibit R2

4. When these two matters were called today, there was no appearance on behalf of either applicant.  I dealt with them concurrently, given that the applicants are brothers, that they had common representation before the Tribunal, that the Tribunal decisions are effectively the same and were dealt with on the same day.  It appears that their agent had requested a concurrent hearing but for whatever reason the matters were dealt with separately by the Tribunal. 

5. The matters have been called three times and on each occasion there has been no answer to the call.  There is no explanation for the non attendance of the applicants.

6. I adjourned for a short time while my Deputy Associate attempted to contact the applicants on their nominated telephone number, which is a landline 02 9773 1390.  The call was unsuccessful in that a recorded message advised that the landline was associated with a migration agent’s business, VT Migration, but it appears no one was in attendance. 

7. In all the circumstances, the solicitor for the Minister submits that the application should be dismissed on account of the non-attendance of the applicants.  I agree and will so order. 

8. In consequence of the dismissal of the applications, the Minister seeks an order for costs in accordance with the Court’s scale in each matter.  I queried whether some economies might not have been achieved, given that the applicants are brothers and the Tribunal decisions are effectively the same.  She explained that a file was required for each matter and that the same work was required on each matter.

9. I will order that the applicants in each matter are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

10. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on each applicant and their migration agent by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 24 July 2014