SZCGG v Minister for Immigration

[2005] FMCA 1236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGG & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1236

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.

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

Applicants: SZCGG, SZCGH & SZCGI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2833 of 2003

Delivered on: 9 August 2005

Delivered at: Sydney

Hearing date: 9 August 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Advocate for the Respondent: Ms S Burnett

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 failure of the applicants to appear.

2. The respondent by 16 August 2005 is to provide the applicants with written notice of today’s orders and inform the applicants of the applicants’ rights under Rule 16.05(2)(b) of the Federal Magistrates Court Rules 2001 (Cth).

3. The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,600.

4. The Tribunal be joined as the second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2833 of 2003

SZCGG, SZCGH & SZCGI

Applicants

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) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 October 2003 and handed down on

   
   

   26 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 15 November 2002 to refuse to grant the applicants protection (Class XA) visas.

Background

1. The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZCGG”, “SZCGH” and “SZCGI”.

2. The applicants are husband, wife and daughter. The husband claimed to be a citizen of Bangladesh, his wife claimed to be a Laotian national and their daughter was born in Australia. The husband and wife arrived in Australia on 8 November 1995 and were admitted under visitor (Class TR, subclass 672) visas. On 30 November 1995 the applicant husband lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. The application was subsequently withdrawn and the applicant husband later applied for a visa as an Indian cook under the special skills category. That application was refused on 7 July 2002. On 23 July 2002 the applicants lodged an application for a protection (Class XA) visa with the Department (Court Book pp.8-56) (“CB”). On 15 November 2002 the delegate refused to grant protection visas (CB pp.60-72) and on 5 December 2002 the applicants applied to the Tribunal for a review of the delegate’s decision (CB pp.73-76).

3. In his application for a protection visa, the applicant husband stated that he was born in December 1960 in Kishore Gonj, Bangladesh and claims Bangladeshi nationality by birth.  He stated he is fluent in both Bengali and English and gave his religion as Islam.  The applicant husband noted his occupation as “Indian cook” (CB pp.18-19).  The applicant wife was born in November 1961 in Houaphanh, Laos.  She claimed to be a national of Laos by birth and stated her occupation as that of telephone operator.  The applicant wife claimed she had completed 18 years of education, including six years of higher education in the Ukraine.  She stated she is fluent in both Lao and English and gave her religion as Buddhism (CB pp.32-34).  The couple stated they were married in Laos on 18 August 1993 and their daughter was born in November 1998 in Australia.  Only the applicant husband made specific claims for protection.

Reasons

1. The matter was listed for hearing in the Court’s Notice of Motion list at 10.15 a.m.  The matter did not immediately proceed at the time because there was no appearance by the applicants.  Neither the Court nor the respondent solicitor had received any notification from the applicants indicating whether they intended to appear before the Court for the scheduled hearing.  The matter was called before me at 10.35 a.m. and the applicants were called three times in the Court precinct but failed to appear.

2. In all the circumstances, it seems appropriate in the absence of the applicants that I should dismiss the application 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 applicants do not lose any substantive rights by this dismissal. They are entitled to apply to the Court to vary or set aside the orders if they wish to do so. It is then a matter for discretion whether or not the Court will set aside the orders. I have been requested by the solicitors for the respondent to make an order for costs and I therefore order that the applicants pay the respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders that the applicants, if they chose, can apply to seek to have set aside.

3. Pursuant to Rule 16.05(2)(b) of the Rules, the respondent was ordered to give written notice to the applicants of today’s orders by 16 August 2005 and the Court’s expectation that any application made by the applicants to set aside today’s orders to be made within 21 days.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  29 August 2005