SZCOF v Minister for Immigration
[2006] FMCA 289
•1 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 289 |
| MIGRATION – Practice and procedure – application for judiciary review of a Refugee Review Tribunal decision – 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, rr.13.03A(c), 16.05(2)(a) Judiciary Act 1903 (Cth), s.39B |
| Applicant: | SZCOF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG186 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2006 |
REPRESENTATION
| Applicant: | There was no appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to the failure of the applicant to appear.
The respondent by 8 March 2006 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG186 of 2004
| SZCOF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
And
| 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 23 January 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 3 December 2003 and handed down on 2 January 2004, affirming the decision of the delegate of the first respondent (“the delegate”) made on 28 April 2003 to refuse to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZCOF”.
Background
The applicant who claims to be a citizen of Indonesia, arrived in Australia on 18 January 2003. On 17 February 2003, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 28 April 2003, a delegate of the Minister refused to grant a protection visa and on 22 May 2003, the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claims she was born in the province of Fujian, People’s Republic of China, but she is currently an Indonesian citizen and holds no other citizenship. Her ethnic group is Chinese and she is a Christian. She was married on 25 October 2002 and travelled on an Indonesian passport issued on 16 November 2002. From October 2002 until January 2003 she lived at the same address in Jakarta. She completed nine years of education in the People’s Republic of China (Court Book (“CB”) 58).
Reasons
The matter was listed in this Court at 2.15pm. It did not immediately proceed at that time because there was no appearance by the applicant. The matter was stood down for approximately 15 minutes to provide the applicant with a period of grace should she have experienced difficulty in locating the Court. Neither the Court, nor the respondent’s solicitor received notification from the applicant to indicate whether she intended to appear for the scheduled hearing. The matter was called before me at 2.30pm, but there was no appearance by or on behalf of the applicant.
In all the circumstances it seems appropriate in the absence of the applicant that I should dismiss the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”), which is dismissal for default of the appearance of a party. The applicant does not lose any substantive rights by this dismissal. She is entitled to apply to the Court to vary or set aside the orders if she wishes to do so. It is then a matter of discretion whether or not the Court will set aside the orders.
The respondent was ordered by 8 March 2006 to give written notice to the applicant of today’s orders, the effect of r.16.05(2)(a) of the Rules and the Court’s expectation that any application made by the applicant to set aside today’s orders is to be made within twenty-one (21) days.
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, fixed in the sum of $4,000. That order forms part of the orders that the applicant, if she chooses, can apply to have set aside.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 30 March 2006
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