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MIGRATION - Application for review of Refugee Review Tribunal - refusal to grant protection visa - no appearance - dismissal of application.

NAFW v Minister for Immigration [2002] FMCA 130 (26 June 2002)

NAFW v Minister for Immigration [2002] FMCA 130 (26 June 2002)
Last Updated: 15 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFW v MINISTER FOR IMMIGRATION
[2002] FMCA 130



MIGRATION - Application for review of Refugee Review Tribunal - refusal to grant protection visa - no appearance - dismissal of application.



Migration Act 1958 (Cth)

Federal Magistrates Court Rules 2001

Federal Court Rules

Applicant:
NAFW



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 330 of 2002



Delivered on:


26 June 2002



Delivered at:


Sydney



Hearing Date:


26 June 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Spark Helmore

Level 30, 2 Park Street

SYDNEY NSW 2000



ORDERS

(1) That the application be dismissed.

(2) That the Applicant pay the Respondent's costs and disbursements of the application which are fixed at $4,200.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 330 of 2002

NAFW


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 20 March 2002 refusing to grant the applicant a protection visa.

2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 19 April 2000. She applied to the Federal Court for review of the Tribunal's decision on 18 April 2002. She attended a Directions Hearing on 9 May 2002. A Mandarin interpreter was present. She was directed to file and serve an amended application by 13 June 2002 and written submissions 5 days before the hearing and was advised that she would be notified of the hearing date.

3. On 10 May 2002 the matter was transferred to the Federal Magistrates Court. The applicant was advised by letter on 20 May 2002 of the hearing time and date. This letter was returned to sender. A further copy of the letter was sent on 7 June 2002 to a second address which was listed for the applicant on the application form. This letter has not been returned. Nor has a copy of an earlier letter of 7 May 2002 sent to this alternate address in relation to the Refugee Review Tribunal pilot advice scheme. However a file note of 12 June 2002 records that the Registry was unable to contact the applicant on the phone number provided on the application.

4. Despite some difficulties in contacting the applicant, I am satisfied that she has been notified of the hearing date and time by the letter of

20 May 2002 which was re-sent on 7 June 2002. There is no other contact address for the applicant.

5. The applicant did not file an amended application or any written submissions. She did not appear when the matter was called at the time appointed for the hearing or when the matter was called again after a fifteen minute adjournment. No message was received from her explaining her failure to appear. On the evidence before me, I am satisfied that the applicant has been on notice of the hearing and was given a proper opportunity to appear.

6. I note that the applicant chose not to attend an interview with the Department when her application was first considered or to attend the Refugee Review Tribunal hearing. This was despite the fact that the Tribunal had informed her that it could not make a favourable decision on the information before it and had invited her to attend a scheduled hearing. The applicant claimed in her application that she was afraid of attending such meetings. She did attend the Directions Hearing. However she has filed no written submissions in support of her case.

7. The respondent seeks an order dismissing the application and costs pursuant to Order 32 r 2(1) (c) of the Federal Court Rules. I consider this rule should apply in this case pursuant to Rule 1.05(2) of the Federal Magistrates Court Rules 2001 there being no equivalent in the Federal Magistrates Court Rules. Order 35 of the Federal Court Rules applies to these proceedings pursuant to Rule 1.05(3)(b) of the Federal Magistrates Court Rules. Order 35 r 7 enables a party against whom orders have been made in absentia to make an application to the Court to have the judgment set aside if there are proper grounds for making such an application.

8. Despite the non-appearance of the applicant I have considered the decision of the Tribunal and the grounds put forward to support the application for review. The applicant's case does not appear to be a strong one, particularly in light of the amendments to the Migration Act 1958 (Cth) which effectively limit the grounds of judicial review.

9. For these reasons I order that the application be dismissed and that the applicant pay the respondent's costs of the application which the respondent has calculated to be $4,200. I accept that this amount is appropriate and I fix the amount of costs in the sum of $4,200 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date:
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