SZNTV v Minister for Immigration & Anor [2010] FMCA 88 (10 February 2010)

Last Updated: 24 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 88

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

Applicant:

SZNTV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1776 of 2009

Judgment of:

Emmett FM

Hearing date:

10 February 2010

Date of Last Submission:

10 February 2010

Delivered at:

Sydney

Delivered on:

10 February 2010

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1776 of 2009

SZNTV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 24 July 2009, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth).
2. In support of that application, the first respondent read the affidavit of Alison Lina Fallon, affirmed 5 February 2010. Ms Fallon’s affidavit annexed a letter sent to the applicant on 3 February 2010 on DLA Phillips Fox letterhead from the solicitor for the first respondent. The letter informed the applicant of the date, time, reason and location of today’s hearing and also advised the applicant that if the applicant did not attend, the first respondent may seek to have the matter dismissed with costs for non-appearance.
3. The letter also attached the first respondent’s outline of submissions. The letter was addressed to the applicant at the only address provided by the applicant to this Court.
4. I note that the applicant attended a directions hearing before a Registrar of this Court on 24 August 2009. 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 by 6 October 2009, together with any evidence by way of affidavit, including any transcript of the Refugee Review Tribunal hearing.
5. On that occasion, the applicant was also directed to file and serve written submissions 14 days before the hearing and the matter was set down for hearing before me on 16 November 2009. The applicant, on that occasion elected to participate in the Court’s panel advice scheme and, on 21 September 2009, met with a panel advisor and received advice in accordance with that scheme. No document has been filed by or on behalf of the applicant either in accordance with those directions or otherwise.
6. On 16 October 2009, the Court wrote to the applicant and the first respondent advising them that the hearing of the matter was to be rescheduled for today at 10.15am. That letter again was sent to the only address that the Court has for the applicant, being the same address as the letter sent by the first respondents annexing the submissions. There has been no other document filed by or on behalf of the applicant, either in accordance with the directions of the Court or otherwise.
7. I note that the grounds of the application make bare assertions that do not disclose an error capable of review by this Court. They are as follows:
   • “1. That the decision of the second respondent was affected by jurisdictional error;
   • 2. That second respondent failed to complete the exercise of its jurisdiction because it did not address the totality of the applicant’s claims”
8. It is now 10.40am. The applicant has been called on at least three occasions outside this courtroom. There has been no communication received by or on behalf of the applicant, either from this Court, from the first respondent, or from the first respondent’s instructing solicitors.
9. In the circumstances, I am satisfied that the applicant was aware, or should have been aware, of today’s hearing and, for whatever reason, has chosen not to attend.
10. Accordingly, the orders sought by the first respondent, in my view are appropriate.

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: 23 February 2010