SZDMP v Minister for Immigration
[2004] FMCA 777
•8 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDMP v MINISTER FOR IMMIGRATION | [2004] FMCA 777 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no appearance – dismissal of application. |
Migration Act 1958 (Cth), s.91R
Federal Magistrates Court Rules 2001
| Applicant: | SZDMP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1329 of 2004 |
| Delivered on: | 8 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
No appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
That the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1329 of 2004
| SZDMP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 April 2004 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
I have received written submissions from Mr R Beech-Jones of Counsel that have been of assistance to me.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 27 March 2003 and applied for a protection visa on 15 April 2003. He claimed that he had been beaten and imprisoned because of his belief in Zhong Gong.
On 23 May 2003 a delegate of the Minister made a decision refusing to grant the applicant a visa and on 16 June 2003 the applicant applied to the Tribunal for a review of that decision. On 19 March 2004 the applicant attended a hearing conducted by the Tribunal and gave evidence in support of his claim. He claimed:
a)He was from Gui Yang city (Court Book p.23 [3]) (“CB”);
b)In November 1998 he became a Zhong Gong follower (CB p.23 [4]);
c)From that time he, with others, participated in Zhong Gong exercises in the park Monday, Wednesday and Friday each week (CB p.23 [5]);
d)In 2000 the Chinese government closed down the offices and training centres of Zhong Gong (CB p.23 [6]);
e)He commenced employment as a photographer for a State-owned enterprise in 1992 and continued working until July/August 2002 when he was told not to turn up for work because there was nothing to do (CB p.63 [7]);
f)He did not seek any other employment (CB p.63 [9]);
g)After the public practice of Zhong Gong was banned he would practise at home with his wife but he had been warned that it was no longer permissible to practise in public (CB p.64 [2]); and
h)He feared that if he returned he would be persecuted at his workplace and that he would not be able to practise in public (CB p.64 [1]).
The Tribunal accepted the applicant’s following claims:
a)The applicant and his wife commenced practising Zhong Gong in public but ceased after 2000 following the receipt of an oral warning from local authorities (CB p.67 [5]);
b)The applicant and his wife practised these exercises in their home from that time (CB p.67 [6]);
c)The applicant and his wife continue to practise Zhong Gong at their home without harassment from the authorities (CB p.67 [6]); and
d)The applicant’s adherence was because it involved the performance of certain exercises which were conducive to good health (CB p.67 [9]).
The Tribunal did not accept the applicant’s following claims:
a)That the mere warning of the applicant to desist from the public performance of Zhong Gong constituted persecution for the purposes of s.91R of the Migration Act 1958 (“the Act”) (CB p.68 [1]);
b)That the loss of the applicant’s employment in 2002 had any connection with his practising of Zhong Gong (CB p.68 [3]); and
c)That the applicant faced harm amounting to persecution on his return to China by reason of his association with Zhong Gong (CB p.68 [6]).
For these reasons, the Tribunal concluded that the applicant was not a person to whom Australia has protection obligations and so affirmed the decision under review.
The applicant appeared before this Court on 16 August 2004 and consented and signed Short Minutes of Order. Order 2 of those Short Minutes of Order stated:
“The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely on 1 October 2004.”
Order 4 of those Short Minutes of Order stated:
“The matter is listed for hearing at the Federal Magistrates Court, Law Court Building, John Maddison Tower, Goulburn Street, Sydney on 8 November 2004 at 10.15 a.m. before Lloyd-Jones FM.”
The applicant did not file an amended application or any written submissions. He did not appear when the matter was called at the time appointed for hearing or when the matter was called again. No message was received from the applicant explaining his failure to appear. On the evidence before me, I am satisfied that the applicant has been on notice of the hearing and was given a proper opportunity to attend.
Despite the non-appearance of the applicant, I have considered the decision of the Tribunal and the grounds put forward to support the application for review. The applicant’s case does not appear to be a strong one.
In all the circumstances it seems appropriate that in the absence of an appearance I should dismiss the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal in default of appearance of a party. The applicant does not lose any substantive rights by that dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is then a matter of discretion whether or not the Court will set aside the order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 8 November 2004
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