SZDXL v Minister for Immigration
[2005] FMCA 862
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXL v MINISTER FOR IMMIGRATION | [2005] FMCA 862 |
| 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: | SZDXL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1933 of 2004 |
| Delivered on: | 16 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms A Nesbitt of Sparke Helmore |
ORDERS
The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1933 of 2004
| SZDXL |
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 28 April 2004 and handed down on 20 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
22 January 2004 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 “SZDXL”.
The applicant, who claims to be a citizen of Poland, arrived in Australia on 4 December 2003. On 15 January 2004 he 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.1-24) (“CB”). On 22 January 2004 the delegate refused to grant a protection visa (CB pp.25-37) and on
18 February 2004 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.38-41).
In his original visa application, the applicant claimed he was born in March 1982 and is a national of Poland. He stated he had completed twelve years of education and described his occupation as “bar attendant”. The applicant claimed to be a member of the Mormon Church and that while in Poland he was subjected to humiliation, abuse, physical attacks and “other forms of discriminatory conduct” by private individuals, Catholic activists and the authorities. He claimed he had “no opportunity to confess his religion freely without threat of being persecuted” (CB p.17). The applicant claimed he was beaten regularly by Catholic fanatics as Poland is traditionally a Roman Catholic country and the “majority of the Polish population maintain intolerant views towards any ideological changes within society” (CB pp.18-19). He claimed the authorities would not protect him because they are under the influence of the Roman Catholic Church (CB p.20).
Reasons
The matter was listed for hearing in this Court at 10.15 a.m. but the matter did not immediately proceed at that time because there was no appearance by the applicant. The matter was called before me at
10.30 a.m. Ms A Nesbitt, Solicitor appearing for the respondent, sought to file an affidavit sworn by her on 10 June 2005. Annexed to the affidavit and marked “X” was a true printed copy of an entry from the Department data base recording the movement details of the applicant in these proceedings which indicated he had departed from Australia on 26 April 2005. Neither the Court nor the respondent’s solicitors had received any notification from the applicant indicating his intention in respect of the proceedings before this Court.
In the circumstances, it seemed appropriate in the absence of the applicant I should dismiss the application pursuant to Rule 13.03A(c) of the of the Federal Magistrates Court Rules 2001 (Cth) which is dismissal for default of appearance of a party. The applicant does not lose any substantive right by the 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 orders.
I have been requested by the solicitor appearing for the respondent to make an order for costs. 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 he chooses, can apply to have set aside.
I certify that the preceding seven (7) 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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