SZCPH v Minister for Immigration
[2006] FMCA 348
•9 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 348 |
| MIGRATION – Practice and procedure - application for judicial review of the Review Tribunal decision – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 where the applicant did not appear. |
| Federal Magistrates Act of 1999 (Cth) Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Applicants: | SZCPH & SZCPI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2791 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2006 |
REPRESENTATION
| Applicant: | There was no appearance by or on behalf of the applicant |
| Advocate for the Respondent: | Ms Broderick |
| 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 respondent by 16 March 2006 is to provide the applicant with written notice of today’s orders and 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 first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2791 of 2005
| SZCPH |
First Applicant
| SZCPI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings are an interlocutory application by the respondent solicitors seeking the matter be dismissed pursuant to the jurisdiction conferred by s.14 and/or 15 of the Federal Magistrates Act of 1999 (Cth). The respondent seeks:
a)An order that the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrate Court Rules (“Rules”) on the basis that:
i)No reasonable cause of action or basis for the application is disclosed;
ii)Further or in the alternative, the proceeding or claim for relief is frivolous or vexatious; or
iii)Further or in the alternative, the proceeding or claim for relief is an abuse of the process of the Court.
b)Further, an order that the Court direct that no further application by the applicants or either of them to review the Refugee Review Tribunal decision handed down on 14 January 2004, or for review of the decision of the delegate of the respondent made on 26 May 2003, or for review of any notification of those decisions be accepted for filing without prior leave of the Court.
c)An order that the applicant pay the first respondent’s costs on an indemnity basis.
d)Such further or other orders as the Court sees fit.
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonyms “SZCPH” (First Applicant) and “SZCPI” (Second Applicant).
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), filed in the Sydney Registry of the Federal Magistrates Court on 30 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The decision made on 16 December 2003 and handed down on 14 January 2004, affirming a decision of the delegate of the respondent (“the delegate”) made on 26 May 2003 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief against the decision of the Tribunal.
For the purposes of this interlocutory application, the respondent tendered and applied for the affidavits of:
a)Olivia Oi-Lam Mak sworn on 2 November 2005 (“affidavit of Ms Mak No.1”);
b)Olivia Oi-Lam Mak sworn on 11 November 2005 (“affidavit of Ms Mak No.2”);
c)Olivia Oi-Lam Mak sworn on 28 February 2006 (“affidavit of Ms Mak No.3”),
to be admitted into evidence.
Background
The applicants are husband and wife and claim to be citizens of India. They arrived in Australia on 20 February 2003 and on 28 March 2003 lodged an application for a protection (Class XA) visas with the Department. On 26 May 2003, a delegate of the Minister refused to grant the protection visas and on 10 June 2003, the applicants applied to the Tribunal for review of the delegate’s decision (affidavit of Ms Mak No.1 page 84).
The applicants claim they are Hindu by religion and they have two daughters and one son. The first applicant states that he had his own business, a diamond jewellery shop, falling under a Muslim dominated area called Naroda, Ahmedabad, India and was trading successfully. The first applicant states that from the year 2000, he became the victim of communism because of his ethnic group and being a follower of a Hindu religion. The first applicant states that extremists of a Muslim party, mainly Muslim League, harassed him, quite often because of his good business in a Muslim area. The applicant states that he gradually started receiving life threatening calls and demands for ransom. He lodged a complaint to police but no proper action was taken. The applicant states that in March 2002, immediately after the Gujrat train tragedy, he suffered an attack on his life by Muslim extremists who had beaten him up severely with iron rods and sticks and looted his shop. The first applicant states he was hospitalised for two weeks because of his injuries. The first applicant stated that he lodged a complaint with the police, but due to the terror of the Muslim extremists groups, no witness came forward to give evidence against them and the police did not take any proper action except by conducting a formal investigation. The applicants did attempt to relocate, but that were unsuccessful, so they decided to leave the country in order to save their lives from Muslim extremists groups. He shut down his business completely and came to Australia in February 2003 and applied for protection in Australia (affidavit of Ms Mak No.1 page 87-88).
Reasons
The matter was listed for hearing in Court at 12.30pm, but there was no appearance by the applicants. Ms Broderick, appearing for the respondents, tendered an affidavit to which were attached copies of the Department’s movement records that indicated the applicants had left Australia on 5 February 2006 and have not returned. Neither the Court nor the respondents’ solicitors received notification from the applicants to indicate whether they intended to appear before the Court, or intended to pursue their application further.
In all the circumstances, it seems appropriate in the absence of the applicants that I should dismiss the application pursuant to r.13.03A(c) of the Rules, which is dismissal for default of appearance of a party. The applicant does not lose any substantial right by that 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 of discretion whether or not the Court will set aside the orders.
The respondents were ordered by 16 March 2006 to give written notice to the applicants at their last known address of today’s orders, the effect of r.16.052(a) of the Rules and the Court’s expectation that any application made by the applicants to set aside today’s orders is to be made within twenty-one (21) days.
I have been requested by the solicitor appearing for the first respondent to make an order for costs. I therefore order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders that if the applicants, if they choose, can apply to have set aside.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 March 2006
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