SZMUS v Minister for Immigration & Anor [2009] FMCA 78 (4 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 78

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 – applicant’s application for leave to file a notice of discontinuance within 14 days of hearing date not granted.

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

Applicant:

SZMUS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2539 of 2008

Judgment of:

Emmett FM

Hearing date:

4 February 2009

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

4 February 2009

REPRESENTATION

No appearance by the applicant

Solicitor for the Respondent:

Ms C. Kelso, Australian Government Solicitor

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2539 of 2008

SZMUS

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court commenced by way of application filed on 1 October 2008 be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of failure of the applicant to appear at today's scheduled hearing.
2. The applicant attended a directions hearing before me on 21 October 2008. On that occasion the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence by way of affidavit, by 9 December 2008. No document was filed by or on behalf of the applicant in accordance with those directions. However, two notices of change of address for service were filed by the applicant, one on 25 November 2008 and another on 4 December 2008.
3. The application filed by the applicant on 1 October 2008 provided only one ground of review; namely, “The Refugee Review Tribunal committed jurisdictional errors of law”.
4. A notice of discontinuance was attempted to be filed by or on behalf of the applicant on 2 February 2009, two days before today's hearing. Such an application required leave of the Court and to date no leave has been given to the applicant to file the notice of discontinuance.
5. The signature on the notice of discontinuance purporting to be the signature of the applicant certainly appears to be similar to the applicant's signature on the affidavit, filed on 1 October 2008 in support of the application, and similar to the signature of the applicant on the initiating application, filed 1 October 2008. However, no communication has been received by this Court or the first respondent, or the lawyers for the first respondent, in relation to the applicant's application for leave to discontinue the proceeding.
6. The grounds of the application before the Court plainly disclose no error capable of review by this Court. A brief perusal of the findings and reasons of the Tribunal make clear that the reason that the Tribunal affirmed the decision under review was because of comprehensive adverse credibility findings in respect of the applicant's claims and evidence.
7. At the directions hearing on 21 October 2008, at which the applicant appeared, the Court’s orders and directions were translated for her and explained to her by me, including that if she failed to appear at today’s scheduled hearing, her application may be dismissed without further notice.
8. In the circumstances, I am satisfied the applicant is aware of today's hearing, and for whatever reason has chosen not to appear. In the circumstances, the application of the first respondent is appropriate.
9. Accordingly, I order that the proceeding commenced by way of application filed on 1 October 2008 is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001, and I order that the applicant pay the costs of the first respondent fixed in the sum of $3,200.
10. I direct the first respondent to notify the applicant of the orders made today at the last address for service filed by the applicant on 4 December 2008.

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

Deputy Associate: E. Maconachie

Date: 9 February 2009