S329 of 2003 v Minister for Immigration

[2006] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S329 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 112

MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Bangladesh claiming a well-founded fear of persecution – credibility – where Tribunal not satisfied that the Applicant was a credible witness – where Tribunal satisfied that the Applicant had fabricated his story of being a Bihari – where Applicant claims breach of s.424A of the Migration Act 1958 (Cth) – where s.424A had not come into force at time of RRT hearing.

PRACTICE & PROCEDURE – Delay – decision notified on 23 July 1998 – application filed on 24 October 2005 – no explanation for delay – discretion to grant relief.

PRACTICE & PROCEDURE – Parties – non-appearance of party – non-appearance of Applicant – where Applicant fails to attend court without explanation – application listed for Final Hearing – not First Court Date.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424A
Federal Magistrates Court Rules 2001 r.13.03A

Applicant: APPLICANT S329 of 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3075 of 2005

Delivered on: 23 January 2006

Delivered at: Sydney

Hearing date: 23 January 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Mr Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to non-attendance of the Applicant at the Court.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3075 of 2005

APPLICANT S329 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 23^rd July 1998 and handed down its decision that same day.

2. The decision of the Tribunal was to affirm the decision of a delegate of the Minister for Immigration and Multicultural Affairs, to use the title at that time, not to grant a Protection Visa to the Applicant.

3. The Applicant is a citizen of Bangladesh who arrived in Australia on 18^th April 1997. He applied for a Protection Visa on 19^th May of that year, but that was refused on 29^th May that same year.

4. On 17^th June the Applicant sought a review of that decision from the Refugee Review Tribunal. He claimed to fear persecution because he was a Bihari and a member of the Mohajir Quami, known as the MQM.  The Applicant attended a hearing held by the Tribunal on 22^nd July and the Tribunal made its decision on 23^rd July 1998. The Tribunal affirmed the delegate's decision not to grant a Protection Visa.

5. The Applicant did not file his application until 24^th October 2005.  There is no explanation given for that rather lengthy delay. 

6. I note too that the Tribunal decision dealt very much on the question of the Applicant's credibility and indeed the Tribunal was not satisfied that the Applicant was a credible witness. The Tribunal even took the view that the Applicant had fabricated his story. 

7. The Applicant has not attended Court today. He was present on 28^th November 2005, when the application was listed for Final Hearing today.  There is no explanation as to why he has not attended.  He has not apparently contacted the solicitors for the First Respondent Minister and there is no record that he has contacted the Court, either by telephone call or by faxing in a medical certificate or by letter or by any other means. He has just not attended. I called the matter at

   
   

   12 noon, he had not appeared. I stood the matter down until 12:30pm, it is now after that time and he has still not appeared.  To my mind there is no point in leaving the matter in the list any further. 

8. Counsel for the First Respondent Minister asks that I dismiss the application because of the Applicant's non-appearance and in my view it is appropriate for me to do so.

9. The Application is dismissed pursuant to Rule 13.03A(c) because of the non-attendance of the Applicant at Court today.

10. In the circumstances, it is appropriate that I should make an order for costs.  The Applicant just has not appeared, nor has he indicated why he was not going to appear and the lawyers for the Respondent were obliged to prepare the matter for a Final Hearing on a defendant basis.  That included the briefing of counsel and in my view it was appropriate to do so. If necessary, I will certify for counsel's appearance today.

11. The sum of $5,000.00 is sought, inclusive of counsel's fees. In my view that is within the scale for the preparation of a matter of this nature and the attending of Court ready to defend the application. I propose to order that the Applicant pay the First Respondent's costs in that sum.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 February 2006