SZUTV v Minister for Immigration & Border Protection

[2014] FCCA 2777

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTV & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2777

Catchwords:

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – No appearance by or on behalf of the applicants 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

First Applicant: SZUTV

Second Applicant: SZUTW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2028 of 2014

Judgment of: Judge Emmett

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Sydney

Delivered on: 20 November 2014

REPRESENTATION

No appearance by or on behalf of the applicants

Solicitors for the Respondents: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2028 of 2014

SZUTV

First Applicant

SZUTW

Second 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 that the proceeding before this Court, commenced by way of application filed 21 July 2014, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. The first applicant attended a directions hearing before me on 4 November 2014. On that occasion, I explained to the first applicant that the 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 is affected by mistake going to the jurisdiction of the RRT. I also explained to the first applicant that the grounds of her application made bare unparticularised assertions that did not by themselves disclose an error capable of review by this Court. I also explained to the first applicant that where the grounds of the application do not raise an arguable case for the relief claimed that her application may be dismissed pursuant to r.44.12 of the Rules.

3. At the directions hearing, the first applicant was given a copy of the applicable costs schedule of the Court and I explained to the first applicant the consequences that may flow to her if a costs order was made against her in the event she was unsuccessful. 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.

4. The first applicant confirmed that she wished to continue with the application for judicial review of the RRT’s decision.

5. The first applicant was appointed the litigation guardian of the second applicant, her infant daughter.  The applicants were given leave to file and serve an amended application, any further evidence and submissions in support of their application by 14 November 2014.

6. At the directions hearing the applicant was also provided with the contact details of legal service providers and interpreting and translation services in documents headed in her own language.

7. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.

8. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise.  The grounds of the application remain those identified in her application filed 21 July 2014 and remain unparticularised bare assertions.  Those grounds are as follows:

   “1. Tribunal’s decision is unfair and doesn’t carry out investigation

   2. Tribunal doesn’t consider my case under complementary protection regulations

   3. Tribunal doesn’t treat my case with judicial fairness. After I submitted extra documents to address the concern the tribunal had to my case tribunal just disregarded it and put it aside for almost one year.”

9. The matter was set down for hearing today at 9.30am.  It is now 11.20am.  The matter has been called outside on at least two occasions, the most recent being less than five minutes ago. There has been no communication received by the first applicant seeking an adjournment of today’s hearing or for any other reason.

10. The solicitor for the first respondent, Ms Given, tendered two letters in support of her application this morning.  Both letters are dated 18 November 2014 and are in identical terms, save that one letter was sent to the post office box address of the applicants and the other to the residential address of the applicants.  Together those documents are marked Exhibit 1A.

11. Exhibit 1A includes by way of service a copy of the first respondent’s submissions, in accordance with directions made by the Court on 4 November 2014.  Exhibit 1A reminded the first applicant that the hearing was listed for today at 9.30am before me and provided the location of the court room.

12. Exhibit 1A further informed the first applicant that if she did not attend today’s hearing that the first respondent would seek orders from the Court that her matter be dismissed with costs. I am informed by the solicitor for the first respondent, Ms Given, that there has been no communication received by the first respondent from the first applicant.

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

14. Accordingly, the orders sought by the first respondent are appropriate and the proceeding commenced by way of application filed on 21 July 2014 should be dismissed pursuant to r.13.03C(1)(c) of the Rules, with costs.

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

Associate: 

Date:  26 November 2014