SZMUA v Minister for Immigration & Anor [2009] FMCA 199 (4 March 2009)

Last Updated: 25 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 199

MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear.

Federal Magistrates Court Rules 2001, r.13.03C(1)(c)

Applicant:

SZMUA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2471 of 2008

Judgment of:

Emmett FM

Hearing date:

4 March 2009

Date of Last Submission:

4 March 2009

Delivered at:

Sydney

Delivered on:

4 March 2009

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent:

Ms D. Watson, Australian Government Solicitor

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2471 of 2008

SZMUA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 that the application filed on 23 September 2008 be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.
2. The applicant attended a directions hearing before me on 13 October 2008. On that occasion the applicant was given leave to file and serve an amended application and any further evidence by way of affidavit by 12 December 2008, and was directed to file and serve submissions 14 days before today’s hearing.
3. On that occasion the matter was also set down for hearing today at 10.15 am.
4. A notation in the order that was interpreted for the applicant at that first Court date stated that, in the event there was no appearance by or on behalf of the applicant at the hearing, the hearing may proceed in the absence of the applicant and the proceeding may be dismissed without further notice.
5. There have been no documents filed by or on behalf of the applicant in accordance with those directions or otherwise. There has been no communication received by the Court from the applicant seeking an adjournment of today’s proceeding, nor has there been any communication received by either the first respondent or the first respondent’s lawyers. At the directions hearing the applicant elected to participate in the NSW RRT Panel Advice Scheme.
6. However, on 3 March 2009 an email was received by the Registry of the Court from Mr Cameron Jackson of counsel, who was the panel adviser assigned to assist the applicant pursuant to the NSW RRT Panel Advice Scheme. The text of that email is as follows:
   • “I am the pilot scheme adviser in this matter.
   • [The Applicant] is currently working in Canberra and has been unable to attend a conference with me.
   • Following your call, I asked him whether he was prepared to have a conference over the phone and accept advice over the phone if the Court considers that preferable (with written advice to be sent to him).
   • He does not intend to attend the hearing tomorrow.[emphasis added]
   • My normal practice is to attempt to contact the client shortly after receiving the Green Book. Normally, I would have a note of this in pen on the front of the file, but I can see no note in this case.
   • I thought that I recollected attempting to call him shortly after receiving the Green Book, but that he did not answer and there was no capacity to leave a message.
   • I do not recollect making a further attempt to call him until Ms Neilson called me and reminded me that the matter was listed tomorrow.
   • I apologise for this oversight. Could you pass on to Her Honour my apologies also? Could you let me know if there is anything further that she feels would assist her?”
7. In particular the email states that the applicant does not intend to attend the hearing tomorrow, being the hearing today.
8. In the circumstances, having regard to the appearance by the applicant before me on 13 October 2008, on which occasion the matter was set down for hearing today, and the information contained in Mr Jackson’s email, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend.
9. In the circumstances, it is appropriate that the orders sought by the first respondent be made. Accordingly, the proceeding before the Court, commenced by way of application filed 23 September 2008, is dismissed with costs pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at today’s hearing. The first respondent is also directed to notify the applicant forthwith of the Orders made today, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.

ORDERS DELIVERED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 11 March 2009