SZCHF v Minister for Immigration

[2004] FMCA 653

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCHF v MINISTER FOR IMMIGRATION [2004] FMCA 653

MIGRATION – Application for review of Refugee Review Tribunal– refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 where the applicant did not appear.

Federal Magistrates Court Rules 2001, Rule 13.03A(c)

Applicant: SZCHF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2873 of 2003

Delivered on: 29 September 2004

Delivered at: Sydney

Hearing date: 23 September 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Applicant: Nil

Solicitor for the Applicant: Mr Ejaz Khan

Counsel for the Respondent: Mr A Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2873 of 2003

SZCHF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 November 2003 which affirmed the decision of the Minister’s delegate not to grant a protection (Class XA) visa to the applicant.

2. The matter was listed for hearing on 23 September 2004 at 10.15 a.m.  The applicant was called but did not make an appearance.

3. The applicant was originally represented by Solicitors, but on

   
   

   14 September 2004 they completed a Notice to Cease to Act.  This was filed in the Registry on 20 September 2004.

4. Two affidavits were filed in Court on the day of the hearing.  The first was filed by Mr Ejaz Khan, Solicitor, of Ward Maxwell & Co, Sydney.  The other affidavit was filed by Kristy Lee Alexander, Solicitor of the Australian Government Solicitor, and the Solicitor responsible for handling this matter on behalf of the respondent.

5. On the information set out in those affidavits, I am satisfied that appropriate attempts have been made to contact the applicant regarding the carriage of these proceedings and that the matter was listed for hearing before this Court on today’s date and that the location of this Court was contained in the various correspondence sent to the applicant.

6. In all the circumstances it seems to be appropriate that in the absence of an appearance I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal in default of appearance of a party.  The applicant does not lose any substantive rights by that dismissal.  He is entitled to apply to the Court to vary or set aside the order if he wishes to do so.  It is then a matter of discretion whether or not the Court will set aside the order.

7. I am also asked to make an order for costs, which I propose to do.  That of course, will form part of the orders which the applicant, if he chooses, can apply to seek to set aside.

8. The respondent seeks an order for $3,000 costs and in the circumstances of this case I am satisfied that this is an appropriate amount. 

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:  29 September 2004