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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for protection visa - review of decision of Refugee Review Tribunal to affirm the decision of a Delegate of the Minister to refuse a protection visa to the applicant - where applicant fails to appear or provide submissions.

SZAZY v Minister for Immigration [2004] FMCA 847 (19 October 2004)

SZAZY v Minister for Immigration [2004] FMCA 847 (19 October 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZY v MINISTER FOR IMMIGRATION
[2004] FMCA 847




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for protection visa - review of decision of Refugee Review Tribunal to affirm the decision of a Delegate of the Minister to refuse a protection visa to the applicant - where applicant fails to appear or provide submissions.




Migration Act 1958 (Cth)

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903 (Cth)

Federal Magistrates Court Rules 2001, r.13.03A

Applicant:
SZAZY




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2441 of 2003




Delivered on:


19 October 2004




Delivered at:


Sydney




Hearing date:


19 October 2004




Judgment of:


Scarlett FM




REPRESENTATION

The Applicant:


No appearance by or on behalf of the Applicant




Counsel for the Respondent:


Mr Lloyd




Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs in the sum of $5,650.00.

(3) The Application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 2441 of 2003

SZAZY



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The application before the Court is an application by a person identified by the code name SZAZY for review of a decision by the Refugee Review Tribunal affirming a decision by the delegate of the Minister not to grant him a protection visa.

2. The applicant sought a review by the Refugee Review Tribunal and on 17 June 2003 he was informed by letter that a hearing would take place on Tuesday, 22 July 2003. He attended that hearing and the Tribunal sought further information from him and he was invited to a second hearing on Tuesday, 12 August 2003. On 18 August 2003 the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought relief in the Federal Magistrates Court but an application was made for summary dismissal on the basis of his failure to provide the relevant information to show that he had a cause of action. He consulted a solicitor, Mr Simon Diab of Simon Diab & Associates, Solicitors at Parramatta. On 22 June when the matter came before me I permitted the applicant to file an amended application which was done that same day and I made an order for costs in favour of the respondent. The matter has been listed for hearing before me today.

3. Apart from the amended application, no documentation has been filed. The applicant has not appeared although I delayed the proceedings to allow at least half an hour to take place after the appointed hearing time of 2.15. The applicant has not filed any affidavit in which he sets out any evidence upon which he may seek to rely. He has not filed any submission setting out what his case may be. All that I have before me in the applicant's case is his amended application seeking a writ of certiorari quashing the decision of the Refugee Review Tribunal, also a writ of mandamus requiring the Tribunal to determine the application according to law, and a writ of prohibition preventing the respondent from taking any action upon the decision of the Refugee Review Tribunal and, somewhat optimistically in the circumstances of today's hearing, an application that the respondent should pay the applicant's costs.

4. As I said, I have received no evidence by way of affidavit. I have received no submission. I have received an outline of submissions from the respondent's counsel, Mr Lloyd, seeking that the application should be dismissed with costs. The reality is that neither the applicant nor his legal adviser has attended at Court today, although they have been given ample opportunity to do so. One would have thought that if the applicant had not provided his solicitor with instructions that the solicitor would have filed a notice of ceasing to act or otherwise sought to have been excused from these proceedings. That has not happened and the solicitor remains on the record.

5. In my view, the applicant is fortunate that he was permitted to keep his case alive back on 22 June but he has taken no steps to further his case since then. Certainly there is no evidence that he has. Rule 13.03A of the Federal Magistrates Court Rules sets out a procedure for what should take place if there is a default of appearance of a party. This is not the first Court date, it is the date set for a final hearing. The respondent has attended by means of a solicitor and by counsel who has been briefed. The applicant is absent and I know of no good reason why the applicant is not here. I propose to dismiss the application.

6. This is a situation where the applicant has not attended Court, just has not appeared and seems not to have made any preparation for the case. The applicant has not withdrawn his application or advised the respondent of an intention not to appear. The applicant was legally represented and should have behaved in a somewhat less cavalier manner than this.

7. The respondent has complied with the Court's directions, the respondent is here with a solicitor and counsel ready to argue the case. To my mind this is a situation which clearly points to the need for an order for costs.

8. The applicant is to pay the respondent's costs of this application. I note the sum sought by Mr Lloyd for the respondent, there being as he said, two directions hearings, a non-compliance list, allowance has been made for the costs which I ordered on a previous occasion. In my view whilst I may not necessarily consider that the sum in excess of $6000 is warranted, I am of a belief that I should make an order for a greater sum than I normally would do.

9. So the applicant is to pay the respondent's costs in this application in the sum of $5650. The application is removed from the list of cases awaiting finalisation but I require a transcript of my reasons for this decision.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date:
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