SZDXI v Minister for Immigration
[2005] FMCA 863
•15 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXI v MINISTER FOR IMMIGRATION | [2005] FMCA 863 |
| MIGRATION – Practice and Procedure – application for judicial review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
| Applicant: | SZDXI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1927 of 2004 |
| Delivered on: | 15 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Mr D Sim of Clayton Utz |
ORDERS
The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1927 of 2004
| SZDXI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 September 2001 and handed down on 16 October 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 22 February 2001 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 “SZDXI”.
The applicant, who claims to be a citizen of Iran, arrived in Australia on 1 October 2000. On 31 October 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-38) (“CB”). On 22 February 2001 the delegate refused to grant a protection visa (CB pp.148-162) and on 26 February 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.163-166).
In her original visa application, the applicant stated she is Iranian and was born in Saveh in May 1963. She stated she speaks, reads and writes Farsi and English and her religion is Muslim. The applicant claimed she was divorced on 31 August 1988 and stated her occupation as that of “airline staff”. Her country of residence before arriving in Australia was Dubai in the United Arab Emirates.
The applicant claimed she had a well-founded fear of persecution in Iran on the basis of her membership of a particular social group being that of divorced women in Iran. In a statutory declaration lodged with her protection visa application (CB pp.28-31) and submissions from her migration agent dated 30 January 2001 (CB pp.44-62), the applicant made the following claims:
a)she gave birth to a son in 1986;
b)she had an abortion in 1987 which is illegal in Iran;
c)she was divorced in 1988 and, as part of the settlement, her former husband agreed that she should retain guardianship of their son. Her husband was to be allowed to have custody of the son for 24 hour visits which would occasionally extend to 48 hours;
d)she had a number of altercations with her former husband regarding custody of their son;
e)she went into hiding and subsequently paid a lawyer to include the son on her passport. She illegally removed her son (without the permission of her former husband) from Iran in order to retain custody of him;
f)her family in Iran received letters requesting the applicant attend court which she failed to do. It is likely she will face punishment from the Islamic courts as she failed to attend when summoned. She will not be able to obtain a fair hearing in the Islamic courts regarding guardianship of her son;
g)she is perceived to be in opposition to the government as she has fled Iran;
h)she has been a litigant in the Islamic courts and as a woman has been treated as an unequal litigant and not given any rights (as the mother of her son);
i)she cannot relocate to another part of Iran because her former husband will take her son from her as a form of punishment; and
j)her former husband will subject her to harsh and inhumane treatment from which the Iranian authorities will not protect her and/or the Iranian state itself will subject her to harsh and inhumane treatment because she fled the country with her son without the permission of her former husband and she failed to comply with Islamic principles.
Reasons
The matter was listed for hearing at 2.15 p.m. but did not immediately proceed at that time because there was no appearance by the applicant. Neither the Court nor the respondent solicitor had received any notification from the applicant indicating her intention to appear before the Court for the scheduled hearing. The matter was called before me at 2.35 p.m. The applicant was called three times in the Court precincts but failed to appear.
In all the circumstances, it seemed appropriate 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 for default of appearance of the applicant. The applicant does not lose any substantive right by the dismissal. She is entitled to apply to the Court to vary or set aside the orders should she wish to do so. It is then a matter of discretion whether the Court will then set aside the orders.
I have been requested by the solicitor appearing for the respondent to make an order for costs and I therefore order that the applicant pay the respondent’s costs of and incidental to the application. That order forms part of the orders which 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: Menna McMullan
Date: 22 June 2005
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