SZCGG v Minister for Immigration (No.2)

[2005] FMCA 1487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGG & ORS v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 1487

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application seeking to set aside orders previously dismissing application for default of a party to appear – application for reinstatement 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)(a)

SZCGG & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1236

Applicants: SZCGG, SZCGH & SZCGI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2833 of 2003

Delivered on: 10 October 2005

Delivered at: Sydney

Hearing date: 10 October 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Advocate for the Respondent: Ms S Zarucki

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicants’ application filed on 22 September 2005 seeking to set aside orders made on 9 August 2005 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 17 October 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)(a) of the Federal Magistrates Court Rules 2001 (Cth) and the Court’s expectation that any application made by the applicants to set aside today’s orders be made within twenty-one (21) days.

3. The Court directs that no further application by the applicants to review the decision of the Refugee Review Tribunal made on 30 October 2003 and handed down on 26 November 2003 be accepted for filing without leave of the Court.

4. The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2833 of 2003

SZCGG, SZCGH & SZCGI

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application

1. This application filed on 22 September 2005 seeks an order to set aside previous orders made in this matter on 9 August 2005 dismissing the matter pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of a party to appear: see SZCGG & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1236 (9 August 2005).

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. A brief summary of the background to this matter is contained in the previous judgment:  SZCGG & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1236 (9 August 2005).

Reasons

1. The matter was listed for hearing in the Court today 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.

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

4. Pursuant to Rule 16.05(2)(a) of the Rules, the respondent was ordered to give written notice to the applicants of today’s orders by 17 October 2005 and the Court’s expectation that any application made by the applicants to set aside today’s orders to be made within twenty-one (21) days.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  14 October 2005