SZDTP v Minister for Immigration
[2005] FMCA 438
•4 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTP v MINISTER FOR IMMIGRATION | [2005] FMCA 438 |
| MIGRATION – Practice and procedure – application for review of Refugee Review Tribunal decision – dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) – applicant failed to appear. |
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)
| Applicant: | SZDTP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1726 of 2004 |
| Delivered on: | 4 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) default of appearance of the applicant.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1726 of 2004
| SZDTP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 10 January 2000 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDTP”.
The applicant arrived in Australia on 27 November 1999. On
14 December 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Act.
The litigation history of this matter is set out in more detail under the subheading “Chronology” below. The decision now under review in this Court is the Tribunal’s second decision dated 22 February 2004, where the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant claimed to be a citizen of Nigeria of Ibo ethnicity and a Christian of Anglican denomination. He claimed he was born and educated in Umuleri Amichi, a town in Anambra State, Nigeria and is approximately 36 years of age. The applicant claimed he was married in November 1989 and his wife and father live in Nigeria. He stated his occupation was business trader and he had a history of employment as a sales manager and managing director in Nigeria. The applicant arrived in Australia on 27 November 1999 travelling on a Nigerian passport and entered Australia on a temporary business visa issued in Lagos on 27 October 1999 (Court Book pp.35-36) (“CB”).
The applicant stated he left Nigeria because his village, Umuleri, was involved in bloody conflict over land with the neighbouring Aguleri Village. He stated that his life was at risk because the Aguleri villagers were bent on killing the Umuleri villagers. The applicant claimed that if he returned to his village he would be killed in a revenge killing and that as the son-in-law of an Aguleri elder, he is marked to die because he did not successfully mediate between the two villages. He stated that the dispute was over land and came to a head when Umuleri elders sold the disputed lands to a member of their clan. The applicant stated that the conflict broke out in 1998 and continued sporadically and large numbers of villagers from both sides were killed (CB p.36).
Chronology
A brief chronology of this matter is set out as follows:
a)The applicant arrived in Australia on 27 November 1999.
b)The applicant lodged a protection visa on 14 December 1999.
c)The delegate refused to grant a protection visa on 10 January 2000.
d)The Tribunal affirmed the delegate’s decision on 11 September 2002.
e)The applicant filed an application in the Federal Magistrates Court and by consent the matter was remitted to the Tribunal on 30 April 2003.
f)The second Tribunal, differently constituted, affirmed the delegate’s decision on 22 April 2004 and handed down its decision 19 May 2004.
g)The applicant lodged an application for review of the Tribunal’s decision with the Federal Magistrates Court on 7 June 2004.
h)The matter was listed for final hearing on 4 April 2005.
Reasons
The matter was listed for hearing at 10.15 a.m. but did not immediately proceed at that time because there was no appearance by the applicant. A member of the Court staff attempted to contact the applicant on the contact number provided on the Court application form. However, that telephone was unattended. The matter was then called before me at 10.30 a.m. The applicant was called three times in the Court precinct but did not appear.
The matter had previously been listed for directions before Registrar Kavallaris on 14 September 2004 at which time a timetable for the final hearing on 4 April 2005 was set down together with a number of other requirements that had to be addressed by particular dates. At the directions hearing the applicant was provided with details of the time, date and venue of the final hearing together with a map indicating the location of the Court in the John Maddison Tower.
The respondent Counsel provided the Court with a copy of a letter forwarded by the respondent Solicitors to the applicant on 18 March 2005 which contained a copy of the respondent’s submissions in relation to the matter of the final hearing. In the body of the letter it indicated that the matter was listed for hearing on 4 April 2005 at 10.15 a.m. in the Federal Magistrates Court of Australia before me in the John Maddison Tower, 88 Goulburn Street, Sydney. That letter had been forwarded by Registered Mail and, at the date of the final hearing, had not been returned.
In all the circumstances, it seemed 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 (Cth) which is dismissal in default of appearance of a party. The applicant does not lose any substantive rights by the 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 orders.
I have been requested by Counsel, appearing for the respondent, to make an order for costs and I indicated that I would do so. That, of course, forms part of the orders which the applicant, if he chooses, can apply to seek to have set aside.
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: 15 April 2005
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