Nbiv v Minister for Immigration
[2005] FMCA 502
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIV v MINISTER FOR IMMIGRATION | [2005] FMCA 502 |
| MIGRATION – Practice and procedure – application for judicial review of a decision of Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where applicant did not appear. |
Migration Act 1958 (Cth),
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)
| Applicant: | NBIV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2890 of 2004 |
| Hearing date: | 6 April 2005 |
| Delivered at: | Sydney |
| Orders made: | 6 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2890 of 2004
| NBIV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 July 2004 and handed down on 19 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 May 2003 to refuse to grant the applicant a protection visa.
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 “NBIV”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 19 February 2003. On 10 March 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 29 May 2003 the delegate refused to grant a protection visa and on 30 June 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed she feared persecution in the People’s Republic of China because of Convention related reasons of “political opinions”. She claimed she was a labourer at a factory from 1981 until 1992 and she was also a union leader at that factory from January 1993 to February 2000 (Court Book p.33) (“CB”). The applicant stated she is married and had lived at the same address from 1992 until February 2003 when she departed China for Australia. She claimed she was unemployed from February 2000 until her departure for Australia.
In a typed one page statement attached to her original visa application, the applicant claimed she was vocal in her opposition to a nationwide workforce rationalisation exercise that saw a significant dismissal of workers from her place of employment. The applicant described the policy of dismissal, known in the People’s Republic of China as Xiagang, as an economically motivated one. She nevertheless claimed that the policy was unfair and as a result of opposing the policy she was persecuted by the Government, being the owners of the factory where she was employed. The applicant claimed she was threatened with dismissal from the factory if she opposed the policy which she started to do in 1997. The factory evidently let her oppose the policy for some years without dismissing her (CB p.89).
Chronology
A brief chronology of this matter is as follows:
a)The applicant arrived in Australia on 19 February 2003.
b)The applicant filed an application for a protection (Class XA) visa on 10 March 2003.
c)On 29 May 2003 the delegate refused to grant a protection visa.
d)On 30 June 2003 the applicant lodged an application with the Tribunal to review the delegate’s decision.
e)The Tribunal forwarded letters to the applicant requesting further information on 28 November 2003 and 18 June 2004. The applicant made attempts to respond to part of the Tribunal’s letter of 28 November 2003 but did not respond to the Tribunal’s letter of 18 June 2004.
f)The Tribunal invited the applicant to attend a hearing on 28 July 2004. Although the applicant indicated she would attend she failed to attend the hearing on the scheduled date. There was no explanation given by the applicant or her adviser for her non attendance at the Tribunal hearing.
g)On 28 July 2004 the Tribunal made its decision which was subsequently handed down on 19 August 2004.
h)The applicant filed an application for a review of the Tribunal’s decision in the Federal Court of Australia on 2 September 2004. The proceeding was given the Federal Court identification of N1284/2004.
i)On 21 September 2004 His Honour Moore J transferred the matter to the Federal Magistrates Court of Australia and was given the Federal Magistrates Court identification of SYG2890/2004.
j)At a directions hearing before Registrar Hedge on 15 September 2004 the applicant was ordered to file and serve an amended application and any evidence upon which she proposed to rely on or before 22 November 2004. This order was complied with to the extent that a document headed “Amended Application” was filed on 18 October 2004. However, the document did not contain any grounds of review.
k)At the directions hearing the applicant advised she wished to participate in the Pilot RRT Legal Advice Scheme (NSW). An adviser was allocated to the applicant and advice was subsequently provided.
Reasons
The matter was listed for hearing at 2.15 p.m. on 6 April 2005 but did not immediately proceed at that time because there was no appearance by the applicant. The Court and the respondent’s Solicitor had not received any notification from the applicant as to her inability to attend Court for the scheduled hearing. The matter was called before me at 2.30 p.m. and despite an announcement in the Court precinct, there was no appearance by the applicant.
In all the circumstances and in the absence of the applicant, it seemed appropriate that 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 right by this dismissal. She is entitled to apply to the Court to vary or set aside the order if she wishes to do so. This will then be a matter of discretion whether or not the Court will set aside the order.
I have been requested by the Solicitor appearing for the respondent to make an order for costs and I have indicated that I will do so. That order also forms part of the orders which the applicant, if she chooses, can apply 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: 18 April 2005
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