NAQW v Minister for Immigration

[2004] FMCA 58

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQW v MINISTER FOR IMMIGRATION [2004] FMCA 58

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – where applicant did not attend the hearing of the Refugee Review Tribunal – failure of the applicant to appear.

Migration Act 1958 (Cth), s.426A
Federal Magistrates Court Rules 2001, Rule 13.03A

Applicant: NAQW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1228 of 2003

Delivered on: 27 January 2004

Delivered at: Sydney

Hearing date: 27 January 2004

Judgment of: Scarlett FM

REPRESENTATION

There was no appearance by or on behalf of the Applicant.

Counsel for the Respondent: Mr McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is dismissed

2. The Applicant is to pay the Respondent’s costs of and incidental to these proceedings in the sum of $4500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1228 of 2003

NAQW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of the decision of the Refugee Review Tribunal which was handed down on the 29^th April 2003.  The Tribunal affirmed the decision of the delegate of the respondent Minister, but refused to grant the applicant a protection visa.  The grounds set out in the application were somewhat sketchy and the applicant has served no submissions in support of his claim.

2. The circumstances are that the applicant has claimed a fear of persecution if he returns to the People's Republic of China because of his involvement with the Falun Gong organisation. 

3. The applicant sought a review by the Refugee Review Tribunal of the decision of the delegate which was handed down on the 30^th April 2002.  The applicant made an application to the Tribunal for a review on the 13^th May 2002.  The Tribunal informed the applicant that it had considered all of the material for it relating to the application but was unable to make a favourable decision on that information alone and, in accordance with the provisions of the Migration Act 1958, invited the applicant to give oral evidence and present arguments at a hearing on the 7^th April 2003. 

4. The applicant advised the Tribunal that he wanted to give oral evidence at the hearing and he did so on the 12^th March 2003.  However, when the matter came on for hearing on the 7^th April 2003, the applicant did not attend nor was there any explanation given to the Tribunal as to why he did not attend. The Tribunal proceeded to make its decision on the basis of the material before it in accordance with the provisions of section 426A of the Migration Act.  The applicant then made an application to the Federal Court for a review of that decision and that application was transferred to the Federal Magistrate's Court.

5. The matter was listed for a final hearing today at 10.15am.  The matter was called at 10.22 am and there was no appearance by the applicant. I stood the matter down and the matter was again called at 10.46am. Again, the applicant has not appeared and no explanation has been given to the Court as to why he has not appeared. It appears to me that the Applicant will not be making an appearance at Court today.

6. Mr McInerney of counsel for the respondent has made an application to the Court that I should dismiss the application and make an order for costs. He relies on Rule 13.03A of the Federal Magistrates Court Rules 2001.  That Rule provides that if a party to a proceeding is absent from a hearing other than the first Court date, the Court may do any of the number of things.  Paragraph C provides, and I quote:

   If the party absent is an applicant or a respondent who has made a cross-claim dismiss the application or the cross-claim.

7. I am of the view that I should have dismissed the application without going further into the merits of the application and I propose to do just that. 

8. It is for these reasons that I propose to make the Orders set out at the commencement of this decision.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  C. Soliman

Date:  5^th February 2004