SZCMZ v Minister for Immigration

[2006] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCMZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 612

MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the non-appearance of the applicant.

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

SAAP v Minister for Immigration [2005] HCA 24

Applicant: SZCMZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG125 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 26 April 2006

Delivered at: Sydney

Delivered on: 26 April 2006

REPRESENTATION

Advocate for the Applicant: No appearance by or on behalf of the applicant

Advocate for the Respondents: Mr Z Charmi

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.

3. The respondents by 3 May 2006 are to provide the applicant with written notice of today’s orders and to inform the applicant of the applicant’s rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 125 of 2004

SZCMZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second 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”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 16 January 2004 for judicial review of a Refugee Review Tribunal (“the Tribunal”) decision. The Tribunal decision was made on 27 November 2003 and handed down on 22 December 2003. It affirmed a decision of the delegate of the first respondent made on 14 January 2003, refusing to grant the applicant a protection visa.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been granted the pseudonym “SZCMZ”.

3. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. Brief background material is contained in the Tribunal decision of

   
   

   Mr Giles Short, reference number: N03/45754, which indicates that the applicant is a citizen of India and arrived in Australia as a visitor in November 2002.  On 29 November 2002, the applicant applied for a Protection (Class XA) Visa.  A delegate of the Minister on 14 January 2003 refused an application by the applicant.  On 13 February 2003, the applicant lodged an application to the Tribunal seeking review of the delegate’s decision Court Book (“CB”) 59.

2. In his original application, the applicant said that he was a Muslim from Mumbai (Bombay) and was a supporter of the “Muslim Samaj Wadi Party” (“MSWP”) and claims that he had been detained, harassed, punched and bashed by security forces of the Indian Government for supporting this party.  He claims that on the first occasion in which he was detained in November 2001, he had been forced to sign a statement that he was working against the Indian Government and that even after he had been released by Indian Army officers, they had come to his home to harass him and abuse him.  The applicant claims that on a second occasion in which he was detained in March 2002, he had been told to leave India.  In his application for review the applicant states that India was a Hindu dominated religious country and that Muslims were not regarded as “equal citizens” or “treated equally well” in India (CB 63).

Reasons

1. The matter was listed for hearing before me at 10.15am today.  When the matter was formally called in the vicinity of the Court, there was no appearance by the applicant.  The solicitor for the first respondent produced a copy of his submissions prepared for the hearing, which had been forwarded to the applicant’s last known address.  This envelope had been returned to the first respondent’s solicitors marked with the notation that the applicant was not known at that address.    Neither the Court nor the first respondent’s solicitors received notification from the applicant indicating whether he intended to continue to pursue his claim or whether he intended to attend Court at the scheduled final hearing.  No submissions had been filed by the applicant and there has been no notification of withdrawal by the applicant.

2. In the circumstances, it seems appropriate that in the absence of the applicant, I should dismiss the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which allows 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 of discretion whether or not the Court will set aside the order.

3. I have ordered the respondents to give written notice to the applicant’s last known address by 3 May 2006 of today’s orders, under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001.

4. I have been requested by the solicitor appearing for the first respondent to make an order for costs.  I therefore order that the applicant pay the first 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 have set aside.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  17 May 2006