SZCAZ v Minister for Immigration

[2005] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAZ v MINISTER FOR IMMIGRATION [2005] FMCA 572

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.

Federal Magistrates Court Rules 2001, Rule 13.03A(c)
Migration Act 1958 (Cth), s.91X

Applicant: SZCAZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2616 of 2003

Hearing date: 12 April 2005

Delivered at: Sydney

Orders made: 12 April 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Solicitors for the Respondent: Ms D Watson of Australian Government Solicitor

ORDERS

1. The respondent’s Notice of Motion is upheld.

2. The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2616 of 2003

SZCAZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter was set down for a hearing of a Notice of Motion on 12 April 2005.  There was no appearance by the applicant at the hearing.  The matter was delayed approximately fifteen minutes to give the applicant a period of grace should he have been delayed travelling to the Court or experienced some difficulty in locating the Court.  The solicitor for the respondent asked for an order dismissing the application in accordance with the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds that the applicant failed to appear. In the circumstances, I considered it appropriate to accede to the application made by the respondent’s solicitor and dismiss the matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 2003 and handed down on 5 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 7 February 2003 to refuse to grant the applicant a protection visa.

Background

1. 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 “SZCAZ”.

2. The applicant and his spouse, claimed to be citizens of India. They arrived in Australia on 2 January 2003. On 10 January 2003 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 7 February 2003 the delegate refused to grant protection visas and on 7 March 2003 the applicant and his spouse applied to the Tribunal for a review of the delegate’s decision.

3. Only the applicant provided written claims under the Refugee Convention.  The spouse relied on her membership of his family unit.  The applicant claimed to be Muslim and feared persecution by Hindus in India.  He claimed that the “political leaders and the BJP [Bharatiya Janata Party] Government is in support of the Hindus and together they may harm [the Muslims] who remain in India”.  He also claimed the authorities in India would not “in any way protect [the Muslims]” (CB p.299).

Reasons

1. The matter was scheduled for hearing in the Notice of Motion list at 10.15 a.m. but did not immediately proceed at that time because there was no appearance by the applicant.  The matter was called before me at 10.30 a.m. and an instruction was given to my associate to call the matter three times in the Court precinct.  However, there was no appearance by the applicant.

2. For the purpose of the Notice of Motion the respondent tendered and applied for an affidavit of Nicholas Malcolm Wood sworn on 12 April 2005 (“the affidavit of Mr Wood”) to be admitted into evidence.  A Court Book prepared by the respondent’s solicitors was filed and served on 10 May 2004.

3. Attached to the affidavit of Mr Wood was a copy of the Notice of Motion filed on 9 March 2005 and returnable on 12 April 2005 that was posted to the applicant by way of service.  Also annexed to the affidavit of Mr Wood and marked “NMW-1” was a copy of a letter enclosing the Notice of Motion and supporting affidavit which was posted to the applicant on 11 March 2005.  The solicitor for the respondent confirmed that at the time of the hearing that she had not been notified that the letters forwarded to the applicant had been returned.

4. 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 Rules which provides for dismissal of an application in default of appearance of a party. The applicant does not loose any substantive rights by dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is a matter of discretion whether or not the Court will set aside or vary the order.

5. I have been requested by the respondent’s solicitor to make an order for costs and I indicated I would do so.  That, of course, forms part of the orders which the applicant, if he chooses, may apply to have set aside.  I therefore order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

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:  3 May 2005