SZQKL v Minister for Immigration

[2011] FMCA 742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 742

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application on account of the applicant’s non appearance.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477

SZQKF v Minister for Immigration & Anor [2011] FMCA 566

Applicant: SZQKL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1418 of 2011

Judgment of: Driver FM

Hearing date: 9 August 2011

Delivered at: Sydney

Delivered on: 9 August 2011

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondents: Mr I Temby
Minter Ellison

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

3. The Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders served on the applicant at his last known address for service by ordinary pre-paid post, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1418 of 2011

SZQKL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 5 July 2011 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2011.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Indonesia and had made claims of persecution on the basis of his Chinese ethnicity.

2. The matter came before me on its first return date on 26 July 2011. 

   
   

   At that time, it was identified that the application had been presented slightly outside the time for the filing of the application prescribed under s.477(1) of the Migration Act 1958 (Cth).

3. I also noted that the applicant’s address for service and the history of his protection visa application and review application before the Tribunal suggested that he fell within a class of persons identified in my decision in SZQKF v Minister for Immigration & Anor [2011] FMCA 566. I invited the Minister’s solicitor, who attended on that occasion, to take instructions whether the Minister requested an immediate show cause hearing in the circumstances of this matter, and adjourned the first court date hearing to today. The applicant was present in court and was assisted by an Indonesian interpreter and I satisfied myself that the applicant understood his obligation to attend the court today at 10.15am.

4. When the matter was called today, there was no appearance by or on behalf of the applicant.  The matter has been called twice and on both occasions there was no answer to the call.  There is no explanation for the applicant’s failure to appear.

5. Prior to me coming on the bench, an attempt was made to contact the applicant on his nominated mobile telephone number but a recorded message indicated that there is no service connected to the nominated number.  The attempt to contact the applicant by telephone was therefore unsuccessful.

6. The Minister has today sought an immediate show cause hearing.  Having regard to the template grounds in the application and the applicant’s failure to attend the interview before the Department and the hearing before the Tribunal to which he was invited, the prospect that the Court might find an arguable case of jurisdictional error appears slim.

7. It is, however, not necessary to resolve that question, given that the Court is entitled to dismiss the application on account of the applicant’s non-appearance today, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

8. I have concluded that, in the circumstances of this matter, that is the appropriate course to take and I will so order.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister has incurred solicitor and own client costs of $5,191 and the Minister sought only scale costs for a show cause hearing.  If the applicant had attended today, it is likely that I would have agreed to conduct an immediate show cause hearing.  The Minister prepared for today’s adjourned first court date in the expectation that that would occur.  Having regard to the circumstances and the costs in fact incurred on behalf of the Minister, I have decided to fix costs in the sum of $3,000.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

10. I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders served on the applicant at his last known address for service by ordinary pre-paid post, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

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

Associate: 

Date:  28 September 2011