SZMCS v Minister for Immigration & Anor [2009] FMCA 49 (19 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 49

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – where applicant failed to attend Federal Magistrates Court hearing.

Federal Magistrates Court Rules 2001, r.13.03C

Applicant:

SZMCS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3248 of 2008

Judgment of:

Scarlett FM

Hearing date:

19 January 2009

Date of Last Submission:

19 January 2009

Delivered at:

Sydney

Delivered on:

19 January 2009

REPRESENTATION

The Applicant:

No appearance by the applicant

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondent:

Mr Johnson

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application is dismissed pursuant to Rule 13.03C due to the non-appearance by the applicant at Court.
(2) The applicant is to pay the first respondent’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3248 of 2008

SZMCS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant has applied for review of a decision of the Refugee Review Tribunal that was signed on 20th February 2008.
   The application has been opposed by the Minister who has sought summary dismissal of the application on the basis that the decision of the Tribunal has already been reviewed.
2. The application came before this Court on its first Court date which was Monday, 22nd December 2008. I note from the Court file that there was no appearance by or on behalf of the applicant. In the circumstances, I did not dismiss the application at that stage or remove it from the list but I listed it for interlocutory hearing on 12th January 2009. The applicant did attend. Unfortunately, due to the absence of an interpreter that hearing could not proceed so I adjourned the matter until today. This time, however, the applicant has not attended.
   He made it clear by a fax sent to the Court on 15th January rather curiously marked for the attention of Driver FM that he was not attending. The relevant parts of the fax say:
   • I am not attending my adjourned hearing on 19th Jan Monday due to my financial hardship.

He then went on to give his real name and give a file reference and the hearing date and time.

3. The applicant has not attended Court today. He was called three times outside the Court Room but there was no appearance at 2:21 pm so it is quite clear that the applicant meant what he said when he sent a fax to the Court on 15th January saying that he was not coming. In my view it is appropriate to dismiss the matter for non-appearance under what it is now r. 13.03C.
4. There is an application for costs on behalf of the first respondent Minister in the sum of $2,000.00. In all the circumstances, I am of the view that is an appropriate figure.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 29 January 2009