NBBN v Minister for Immigration

Case [2004] FMCA 403

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBN v MINISTER FOR IMMIGRATION [2004] FMCA 403

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China – where applicant did not attend the RRT hearing.

PRACTICE & PROCEDURE – Summary dismissal – where applicant fails to appear at hearing.
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrates Court Rules 2001 Rules 13.03(2) (b); 13.03A
Applicant: NBBN
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number: SYG 1015 of 2004
Judgment of: Scarlett FM
Hearing date: 22 June 2004
Date of Last Submission: 22 June 2004
Delivered at: Sydney
Delivered on: 22 June 2004

REPRESENTATION

The Applicant: No appearance
Counsel for the Respondent: Ms Rayment
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. That the Application be summarily dismissed.

  2. That the Applicant is to pay the Respondent’s costs fixed in the sum of $1,500.00.

  3. I allow one month to pay the costs.

  4. The final hearing date of 1 March 2005 is vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1015 of 2004

NBBN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision by the delegate of the Minister to refuse a protection visa to the Applicant. The substantive application is due to be heard on 1 March 2005. The matter is before the Court today because the Respondent has applied for summary dismissal.

  2. The Applicant has not appeared today, despite being advised of the application for dismissal. The Applicant has been called outside the courtroom, but no-one has answered the call.

  3. The Applicant has failed to comply with the directions made at the first hearing date to either file an affidavit in support or provide particulars of the reasons why jurisdictional error is claimed. The Applicant has not attended court today.

  4. I note that the Applicant also did not attend the hearing before the Refugee Review Tribunal.  

  5. I am satisfied that this is a matter that should be dismissed now, as the Applicant has both failed to take a step in the proceedings (R. 13.03(2) (b) and failed to attend Court today (R 13.03A). I propose to dismiss the application and make an order for costs against the Applicant.

  6. Ms Rayment, the solicitor for the Respondent Minister, seeks the sum of $1,500.00, which appears to be a reasonable figure and well within the range envisioned by the Rules.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S. Polley

Date:  1 April 2005

Details
AGLC
NBBN v Minister for Immigration [2004] FMCA 403
Case
[2004] FMCA 403
Decision Date

CaseChat Overview and Summary

The case of NBBN v Minister for Immigration involved a Chinese citizen who was seeking a review of the decision of the Refugee Review Tribunal (RRT) that upheld a decision by the Minister's delegate not to grant the applicant a protection visa. The applicant did not attend the RRT hearing, which subsequently led to an application for judicial review of the RRT's decision. The court was tasked with considering the merits of the application despite the applicant's failure to appear before the tribunal.

The central legal issue before the court was whether the failure of the applicant to appear at the RRT hearing provided sufficient grounds for the court to summarily dismiss the application for judicial review. The court also had to consider the appropriate consequences of such a failure, including the imposition of costs and the impact on the scheduling of the hearing.

The court found that the applicant's absence at the RRT hearing was a significant procedural irregularity that warranted summary dismissal of the application for judicial review. The court reasoned that the applicant's non-attendance deprived the RRT of the opportunity to hear the applicant's case in full, thus affecting the fairness of the tribunal's decision. Consequently, the court concluded that the application did not meet the necessary threshold for a substantive hearing and was appropriately dismissed summarily. Additionally, the court ordered the applicant to pay the respondent's costs and vacated the scheduled hearing date.

The final orders of the court included the dismissal of the application, the imposition of costs on the applicant, and the vacation of the scheduled hearing date. The court fixed the amount of costs at $1,500 and allowed the applicant one month to pay these costs. This decision underscores the importance of procedural compliance in migration cases and the potential consequences of failing to adhere to such requirements.

Orders

Orders of the court

1.

That the Application be summarily dismissed.

2.

That the Applicant is to pay the Respondent’s costs fixed in the sum of $1,500.00.

3.

I allow one month to pay the costs.

4.

The final hearing date of 1 March 2005 is vacated.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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