SZUXQ v Minister for Immigration

[2016] FCCA 1062

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1062

Catchwords:
MIGRATION –Administrative Appeals Tribunal.

PRACTICE AND 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), rr.13.03C, 44.12

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUXQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2269 of 2014

Judgment of: Judge Emmett

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Sydney

Delivered on: 5 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondents: Hailey Musgrove
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2269 of 2014

SZUXQ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 13 August 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Ms Hailey Musgrove, tendered a letter dated 27 April 2016, to the applicant from the solicitor for the first respondent, addressed to the applicant’s address for service in Australia. That letter was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed by way of service a copy of the respondent’s submissions that were filed on 27 April 2016.  Exhibit 1R informs the applicant of the date, time, and location of today’s scheduled hearing, and further informs the applicant that if the applicant did not attend the hearing, then his matter may be dismissed with costs.

4. On 12 November 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the Refugee Review Tribunal dated 9 July 2014 (“the Tribunal”), unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the jurisdiction of the Tribunal.

5. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. 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. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language should he wish to take advice.

6. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon by 13 January 2015, together with any further evidence by way of affidavit including any transcript or recording of the Tribunal hearing, as well as submissions in support. The matter was set down for final hearing today.

7. The applicant was also directed to file and serve any change of address for service or contact details immediately upon any such change.

8. The Orders made by me on 12 November 2014 stated that, in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the applicant’s application may be dismissed without further notice.

9. I note that there have been no documents filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

10. All of those Orders were translated for the applicant on 12 November 2014. There has been no communication received by or on behalf of the applicant, either from the Court or the first respondent's solicitor, seeking an adjournment of today's hearing, or for any other reason.

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

12. I am satisfied that the orders sought by the first respondent are appropriate.

13. Accordingly, the proceeding before this Court, commenced by way of application filed on 13 August 2014, should be dismissed with costs 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.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  12 May 2016