SZMYV & Anor v Minister for Immigration & Anor [2009] FMCA 79 (4 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 79

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 either of the applicants to appear at the scheduled hearing.

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

First Applicant:

SZMYV

Second Applicant:

SZMYW

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3089 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 on behalf of the applicants

Solicitors for the Respondent:

Ms A. Bain, Sparke Helmore

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3089 of 2008

SZMYV

First Applicant

SZMYW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. The first respondent seeks an order that the proceedings before this Court commenced by way of application on 25 November 2008 be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicants to appear at today's first court date.
2. In support of the application, the first respondent tendered two letters. The first, marked Exhibit 1R, dated 1 December 2008 and addressed to the first applicant at the address identified for receiving mail on the application. The second, marked Exhibit 2R, dated 23 December 2008 was sent to the applicant at the address identified by the applicant in a notice of change of address for service filed on 4 December 2008. RECORDED : NOT TRANSCRIBED
3. I note that Exhibit 1R encloses a copy of a notice of appearance and provides the name of legal service providers for the information of the applicant. It also informs the applicant that, if the applicant does not attend the directions hearing, that the first respondent would seek orders from the Court to have the application dismissed and for the applicant to pay the Minister's costs.
4. Exhibit 2R reminds the applicant of the directions hearing today at 2.15pm and again informs the applicant that, if the applicant does not attend, the first respondent would seek orders from the Court that the matter be dismissed and that the applicant pay the Minister's legal costs.
5. There has been no communication received by the Court from the applicant seeking an adjournment, nor has there been any communication from the applicant to the first respondent's lawyers.

RECORDED : NOT TRANSCRIBED

6. The initiating application filed by the applicant appears to be signed by the applicant and clearly states the first court date is today, 4 February 2009, at 2.15pm.
7. It is now 3.15pm. There has been no appearance by or on behalf of the applicant, despite the matter having been called outside. In the circumstances, I am satisfied that the applicant knew or should have known of today's first court date and, for whatever reason, has chosen not to attend.
8. In the circumstances, the orders sought by the first respondent are appropriate.

ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 9 February 2009