SZCDE v Minister for Immigration

[2005] FMCA 1511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCDE v MINISTER FOR IMMIGRATION [2005] FMCA 1511

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) for default of a party to appear.

Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05(2)(a)

Applicant: SZCDE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2699 of 2003

Delivered on: 11 October 2005

Delivered at: Sydney

Hearing date: 11 October 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Advocate for the Respondent: Mr K Sinnadurai

Solicitors for the Respondent: Clayton Utz

ORDERS

1. 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.

2. The respondent by 18 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).

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

SYG2699 of 2003

SZCDE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. 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 9 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   15 October 2003 and handed down on 6 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on

   
   

   12 November 2002 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks unstated relief against the decision of the Tribunal.

Background

1. 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 “SZCDE”.

2. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia for the second time on 14 September 2002. On 3 October 2002 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.1-27) (“CB”). On 12 November 2002 the delegate refused to grant a protection visa (CB pp.31-39) and on 9 December 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.40-45).

3. The applicant claims he was born in the People’s Republic of China and is ethnically Chinese.  He claims he grew up in China during the Cultural Revolution but did not suffer discrimination or persecution because he was from the working class.  The applicant stated he graduated from high school in 1977 and in 1996 he heard about Falun Dafa from a friend.  He stated he read two books about Falun Dafa and felt better if he practised with other practitioners.  The applicant claimed he believed the Chinese government had banned Falun Dafa because of its nervousness about the large number of people engaged in an activity not under their control and because of its attitude towards human rights and freedom of beliefs, which have exhibited a consistent record of suppression and intolerance when dealing with spiritual/religious beliefs of people (CB p.60).

4. The applicant claimed that when Falun Dafa was officially banned in 1999 many practitioners were arrested and jailed.  He stated he was called to the local police station to confess his conviction for learning and practising and spreading Falun Gong (CB p.61).

Reasons

1. The matter was listed for hearing in this Court at 2.15 p.m. but did not immediately proceed at that time because there was no appearance by the applicant.  Neither the Court nor the respondent solicitor had received notification from the applicant indicating that he intended to appear before the Court for the scheduled hearing.  The matter was called before me at 2.35 p.m. but there was no appearance by or on behalf of the applicant.

2. In all the circumstances, it seemed appropriate in the absence of the applicant I should dismiss the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) which is a 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 orders if he wishes to do so. It is then a matter for discretion whether or not the Court will set aside the orders.

3. I have been requested by the solicitors for the respondent to make an order for costs and I therefore order 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.

4. Pursuant to Rule 16.05(2)(a) of the Rules, the respondent was ordered to give written notice to the applicant of today’s orders by 18 October 2005 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 nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  13 October 2005