SZDBJ v Minister for Immigration

[2005] FMCA 1780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBJ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1780

MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of India – where information received that Applicant has voluntarily departed Australia.

PRACTICE & PROCEDURE – Parties – non-appearance of party – application of paragraph (c) and (d) of Federal Magistrates Court Rules Rule 13.03A.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001, rule 13.03A

SZGHX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1668 followed

Applicant: SZDBJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 808 of 2004

Delivered on: 1 December 2005

Delivered at: Sydney

Hearing date: 1 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No appearance

Solicitor for the Respondent: Ms Palmer

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed because of the absence of the Applicant.

2. The hearing date of 8 May 2006 at 2:15p.m. is vacated.

3. The Applicant is to pay the Respondent’s costs in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 808 of 2004

SZDBJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 2^nd February 2004 and handed that decision down on 24^th of that month.

2. The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant.

Background

1. The Applicant is a citizen of India who arrived in Australia on 11^th October 2001. He applied for a protection visa, which was refused. On 14^th April 2003 he applied to the Refugee Review Tribunal for a review of that decision.

2. The Applicant attended a hearing of the Tribunal on 24^th November 2003 and gave oral evidence. After he was notified that the Refugee Review Tribunal had not granted his application, the Applicant filed an application for review at this Court on 19^th March 2004. At that stage, he was represented by a solicitor.

3. On 7^th October 2005 his solicitor filed a Notice of Ceasing to Act. The solicitor also filed an affidavit of that same date by Raj Palany, solicitor, advising that he had been unable to contact his client since before 5^th July 2005.

4. The Applicant has not attended court today. I understand from the affidavit of Ellie Jane Palmer, solicitor, sworn on 21^st November 2005, that she has been informed by one Kelly-Ann Quinn, a legal officer employed with the Department of Immigration and Multicultural and Indigenous Affairs that the Applicant departed Australia on 14^th May 2004. The Applicant held a bridging visa WA (sub-class 010), which visa does not allow the Applicant to re-enter Australia. Annexed to Ms Palmer’s affidavit is a copy of the Department’s “movement check” document that verifies that information.

5. I am satisfied that the Applicant has departed Australia and I propose to dismiss the application with costs under the provisions of Rule 13.03A(c). In my view, Rule 13.03A(d) should more appropriately be left for matters that have been listed for Final Hearing and are heard ex parte when a party does not appear. In a case like this, where the application has been listed for further directions, it is more appropriate to dismiss it under Rule 13.03A(c). I note that in a recent appeal decision, SZGHX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1668, Jacobson J stated that the provisions of paragraphs (c) and (d) of Rule 13.03A are mutually exclusive.

6. In this case, it will make no difference to the Respondent, as the Applicant has left Australia. I will also vacate the hearing date of 8^th May 2006 at 2:15 p.m.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 December 2005