SZCNR v Minister for Immigration
[2006] FMCA 268
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 268 |
| MIGRATION – Practice and procedure – application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 as the applicant did not appear. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 483A Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05(2)(a) |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZCNR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG163 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the failure of the applicant to appear.
The respondents by 3 March 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.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG163 of 2004
| SZCNR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
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 21 January 2004 for judicial review of the Refugee Review Tribunal (“the Tribunal”) decision, made on 2 December 2003 and handed down on
23 December 2003. It affirmed the decision of the delegate of the first respondent (“the delegate”) made on 4 March 2003, refusing to grant the applicant a protection visa. The applicant seek relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been granted the pseudonym “SZCNR”.
The applicant has not sought to join the Tribunal as a party, however given that 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 & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].
Background
The applicant is a 48 year old national of the People’s Republic of China. The applicant originally claimed that he suffered cerebral ischemia in May 1998. As a result, he started practising Falun Gong and his health improved. After about six months he was caught by the Public Security Bureau (“PSB”) and told that Falun Gong was illegal. He was ordered not to practise again. He kept practising secretly. He was called to the PSB again, and told that it was illegal and he must write a letter promising not to do it anymore. He claims to have written the letter, but said he could not stop practising. He claimed that as a result, the local branch of the PSB searched for him. Further that if he went back to China, he would be prosecuted. At the Tribunal hearing he told the Tribunal that if he returned to China it would be known that he had practised Falun Gong in Australia and as he had previously signed an undertaking not to do sp, he might face re-education or be sent to a labour camp.
Reasons
The matter was listed for hearing in the Court at 2.15pm today. The matter did not immediately proceed because the applicant did not appear. The matter was stood down for approximately 15 minutes to provide the applicant with a period of grace should he be experiencing difficulties in locating the Court. Neither the Court nor the respondent’s solicitors received notification from the applicant to indicate whether he intended to appear before the Court for the scheduled hearing.
Counsel for the respondent tendered in Court a letter written by the respondent’s solicitor to the applicant dated 21 February 2006 and delivered by courier to the applicant’s last recorded residential address. The letter contained by way of service the respondent’s outline of submissions dated 21 February 2006 and a reminder to the applicant that the matter was listed for hearing on 24 February 2006 at 2.15pm. A contact number was provided to the applicant should he wish to make any enquiries of the respondent’s solicitor concerning the matter. The respondent’s solicitors had previously supplied the applicant with a copy of the Court Book, served on 13 July 2004, containing the relevant documents with respect to these proceedings. The matter was called again in the vicinity of the Court at 2.30pm but there was no response for or on behalf of the applicant.
In the circumstances, it seems appropriate that in the absence of the applicant, I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) 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.
The respondents were ordered by 3 March 2006 to give written notice to the applicant of today’s order, the effect of r.16.05(2)(a) of the Rules.
I have been requested by counsel appearing for the respondent to make an order for costs. I therefore order that 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 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: 9 March 2006
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