S1955 of 2003 v Minister for Immigration
[2005] FMCA 1508
•5 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1955 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1508 |
| 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. |
Migration Act 1958 (Cth), s.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)
| Applicant: | APPLICANT S1955 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3046 of 2004 |
| Delivered on: | 5 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Ms A Alex |
| 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 12 October 2005 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under 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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3046 of 2004
| APPLICANT S1955 of 2003 |
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) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
17 May 2000 and handed down on 31 May 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on
7 July 1998 to refuse to grant the applicant a protection visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “Applicant S1955 of 2003”.
The applicant, who claims to be a citizen of India, arrived in Australia on 4 November 1997. On 17 June 1998 he lodged an application for a protection visa with the then Department of Immigration & Multicultural Affairs (“the Department”) under the Act (Court Book pp.2-33) (“CB”). On 7 July 1998 the delegate refused to grant a protection visa (CB pp.36-40) and on 20 July 1998 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.42-45).
The applicant was born in Chandigarh, capital of the Punjab State.
He is a Hindu and is single. The applicant completed a Bachelor of Arts in 1996 at the Punjab University and was studying hospitality in Australia. The applicant claimed that Hindus are in the minority in the State of Punjab and have constantly become the innocent victims of ruthless campaigns of terror being conducted by militant Sikh separatists.
Reasons
The matter was listed for hearing in the Court at 2.15 p.m. The matter did not immediately proceed at that time because there was no appearance by the applicant. The matter was stood down for approximately fifteen minutes to provide the applicant with a period of grace should he have experienced difficulty in locating the Court. Neither the Court nor the respondent’s solicitors received notification from the applicant to indicate whether he intended to appear before the Court for the scheduled hearing. The matter was called before me at 2.30 p.m. but there was no appearance by or on behalf of the applicant.
The respondent solicitor provided the Court with a copy of the Department’s movement records which indicated that the applicant had departed Australia on 13 February 2005. A copy of a letter from the respondent’s solicitors dated 27 October 2004 was tendered to the Court confirming the applicant had been advised of the location, time and venue of the hearing before the Court. The respondent also tendered a further letter dated 29 October 2004 indicating the applicant had been supplied with a copy of the Court Book prepared in these proceedings.
In all the circumstances, it seemed appropriate in the absence of the applicant, that I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) which is dismissal for default of appearance of a party. The applicant does not lose any substantive right 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 have set aside.
The respondent was ordered by 12 October 2005 to give written notice to the applicant of today’s orders, the effect of Rule 16.05(2)(a) of the Rules and the Court’s expectation that any application made by the applicant to set aside today’s orders is to be made within twenty-one (21) days.
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: 7 October 2005
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