NBJY v Minister for Immigration
[2005] FMCA 1017
•5 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBJY v MINISTER FOR IMMIGRATION | [2005] FMCA 1017 |
| 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
| Applicant: | NBJY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG611 of 2005 |
| Hearing date: | 5 July 2005 |
| Delivered at: | Sydney |
| Orders made: | 5 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is 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 respondent by 11 July 2005 to give written notice to the applicant of today’s orders, the effect of Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) and the Court’s expectation that any application made by the applicant to set aside today’s orders be made within twenty-one (21) days.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,420.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG611 of 2005
| NBJY |
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 on 15 December 2004 a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
4 November 2004 and handed down on 2 December 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 18 June 2004 to refuse to grant the applicant a protection (Class XA) visa. On 24 February 2005 the matter was transferred to the Federal Magistrates Court of Australia by His Honour Hely J.
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 “NBJY”.
The applicant, who claims to be a citizen of Nepal, arrived in Australia on 11 December 2001. On 17 March 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.1-35) (“CB”). On 18 June 2004 the delegate refused to grant a protection visa (CB pp.41-45) and on 13 July 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-49).
The applicant stated he was born in Lalitpur, Nepal in January 1977. He stated he was fluent in Nepali, English and Hindu and was a Hindu who belonged to the Chetri ethnic group. The applicant claimed he completed secondary schooling in 1996 and that from 1994 to 1996 he studied in India. The applicant also indicated he had completed two years of a commerce degree in Nepal, one year of a marketing diploma in Australia and has partly completed a degree in accounting. The applicant has lived in Australia since February 1999 except for a six week period in 2001. He entered Australia on a student visa.
The applicant claimed he was an active member of the Nepal Communist Party (Maoists) (“the NCP-M”) and he was fearful that the authorities in Nepal would seek to harm him because of his political opinion. The applicant stated his father was also an active member of the NCP-M and had been arrested in July 2002 while giving a speech at a rally. The applicant claimed that his father was charged with terrorism and treason and had been held indefinitely by the government. He claimed the authorities had confiscated most of the family’s property and had harassed other family members (CB pp.63-65).
Reasons
The matter was listed for hearing in the Court’s directions list at 10.00 a.m. However, the matter did not immediately proceed at that time because there was no appearance by the applicant. The matter was stood down in the list. Neither the Court nor the respondent solicitors had received any notification from the applicant indicating whether he intended to appear before the Court at the scheduled hearing. The matter was called before me at 10.20 a.m. but there was no appearance by or on behalf of the applicant.
On 30 June 2005 an affidavit of Mr John Bird, Solicitor for the respondent, affirmed that the applicant had attended a directions hearing on 9 February 2005 before a Registrar of this Court. At that time the applicant was directed to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 4 May 2005. The affidavit also stated that the applicant participated in the Pilot RRT Legal Advice Scheme (NSW) and a copy of the Tribunal’s hearing tapes and the Court Book were forwarded to the applicant’s panel adviser. Correspondence in respect of this issue was attached to the affidavit. The affidavit also indicated that on
25 May 2005 a letter was sent to the applicant at the address of service provided by the applicant indicating that the amended application had not been filed in compliance with the orders of the Court. That correspondence was also attached to the affidavit. Finally, on 6 June 2005 the applicant was forwarded a letter at the address of service provided by the applicant stating that the matter had been listed for a non compliance hearing on 5 July 2005 at 10.00 a.m. at the Federal Magistrates Court, John Maddison Tower, 88 Goulburn Street, Sydney. That letter was attached to the affidavit.
In all the circumstances, it seemed appropriate 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 for 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 order if he wishes to do so. It is then 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. I therefore order that the applicant pay the respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders that the applicant, if he chooses, can apply to seek to have set aside.
The respondent was ordered by 11 July 2005 to give written notice to the applicant of today’s orders, the effect of Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) and the Court’s expectation that any application made by the applicant to set aside today’s orders to be made within twenty-one (21) days
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 July 2005
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