NBIT v Minister for Immigration
[2005] FMCA 588
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIT v MINISTER FOR IMMIGRATION | [2005] FMCA 588 |
| MIGRATION – Practice and procedure – application for judicial review of Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)
| Applicant: | NBIT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2924 of 2004 |
| Delivered on: | 3 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms O Mak of Clayton Utz |
ORDERS
The application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2924 of 2004
| NBIT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Court of Australia on 30 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The matter was transferred to the Federal Magistrates Court of Australia on 24 September 2004.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NBIT”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 10 January 2004. On 11 February 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-27) (“CB”). On 27 February 2004 the delegate refused to grant a protection visa (CB pp.37-48) and on 25 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.51-54).
In his visa application, the applicant stated he was born in August 1961 and is a married man from Changle City in the Fujian Province of China. He stated that he speaks, reads and writes Chinese and Mandarin, that his ethnic group is Han and his religion is Christian. The applicant did not provide any information of his prior occupation or profession. He stated he had fourteen years of education and holds a diploma by correspondence that was issued in 1984. The applicant stated that from 1981 to 1997 he was a purchaser and from 1997 to 2003 he was a vice manager. The applicant stated in January 2003 he was unemployed and in March 2003 he was in prison.
The applicant came to Australia on a temporary business visa and his passport was issued in May 2002. He stated he visited Malaysia, Thailand and Bangladesh in May and June 2003. The applicant stated he was involved in illegal, underground Christianity activities in January 2003 (CB pp.26-27).
Procedural history
A brief procedural history of the matter is as follows:
a)The applicant arrived in Australia on 10 January 2004;
b)On 11 February 2004 the applicant lodged an application for a protection (Class XA) visa;
c)The delegate refused to grant the visa on 27 February 2004;
d)On 25 March 2004 the applicant lodged an application with the Tribunal for a review of the delegate’s decision;
e)The Tribunal issued an invitation to the applicant to attend a hearing to be held on 9 July 2004. This was initially accepted by the applicant by Response to Hearing Invitation executed on 8 June 2004 but was subsequently declined on a new Response to Hearing Invitation Form executed on 6 July 2004;
f)On 14 July 2004 the Tribunal rejected the application and handed down its decision on 4 August 2004;
g)On 30 August 2004 the applicant applied to the Federal Court of Australia for a review of the Tribunal’s decision;
h)On 24 September 2004 His Honour Whitlam J transferred the matter to the Federal Magistrates Court. His Honour also made orders requiring the applicant to file an amended application by 19 November 2004;
i)The applicant appeared at a directions hearing before Registrar Kavallaris on 18 November 2004 at which time he indicated he wished to participate in the Pilot RRT Legal Advice Scheme (NSW). A conference was organised on 16 December 2004 but the applicant failed to attend. He received written advice on 19 December 2004.
Reasons
The matter was listed in a non compliance list for hearing at 10.45 a.m. The matter did not immediately proceed at that time because there was no appearance by the applicant. The matter was called before me at 11.00 a.m. The applicant was called three times in the Court precinct but there was no appearance. Neither the Court nor the respondent’s solicitor had received any communication from the applicant to indicate whether his intentions to appear in Court.
In all the circumstances, it seemed appropriate that, in the absence of the applicant, I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which is dismissal in default of appearance of a party. The applicant does not lose any substantive rights by this dismissal. He is entitled to apply to the Court to vary or set aside the orders if he wishes to do so. It is then a matter of discretion whether the Court will vary or set aside the orders.
I have been requested by the solicitor appearing for the respondent to make an order for costs. That forms part of the orders which the applicant, if he chooses, can apply to seek to have set aside.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 4 May 2005
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