SZDXX v Minister for Immigration
[2005] FMCA 1565
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXX v MINISTER FOR IMMIGRATION | [2005] FMCA 1565 |
| MIGRATION – Application to set aside default order – applicant did not attend Tribunal hearing – no merit in application. |
| Federal Magistrate Court Rules 2001 |
| Applicant: | SZDXX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1959 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 12 October |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms P. Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 16 September 2005 is dismissed.
The applicant pay the respondent's costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 1959 of 2004
| SZDXX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant has been refused a protection visa. Her application to the Refugee Review Tribunal was dismissed on 7 May 2004. The tribunal affirmed the decision of the respondent not to grant a protection visa.
The applicant has applied to this Court for review of the tribunal's decision. On 26 July 2005, the application was dismissed pursuant to rule 13.03(2) of the Federal Magistrate Court Rules 2001. That rule deals with non-compliance with orders of the Court. The applicant had not filed an amended application or any contentions in accordance with orders made on 19 November 2004.
The affidavit in support of the application to dismiss for non-compliance shows that there had been a number of extensions of time granted by the first respondent. Initially, this was because Victoria Legal Aid was assessing the applicant's application for legal aid and then after that application was refused, there were further extensions granted.
The applicant has now applied to have the order of 25 July 2005 set aside. The application is made under rule 16.05(2)(c) which gives the Court power to set aside a judgment or order that is interlocutory. Probably the order made on 26 July 2005 is interlocutory.
The affidavit in support of the application to set aside says that the applicant is not represented. She doesn't know the procedures and she did not know the consequences of the court order. She says she will follow the Court orders in future.
No written contentions have been filed and there is nothing in the affidavit or application from the applicant which puts forward any ground for attacking the tribunal's decision.
The applicant did not appear at the tribunal's hearing. She has told me she did not go because that was what her migration agent advised her. That is no basis for attacking the tribunal's decision.
The applicant's claim for a protection visa is based on this: she is a citizen of India; she is a Sikh and she comes from Punjab. She claims she cannot return because it is not safe in the Punjab for Sikh people. She claims harassment, arrest and torture because of her involvement with the All India Sikh Federation. She then says that as a result of harassment she moved to Delhi, Uttar Pradesh, Agra and then to Singapore.
The tribunal said it found the applicant's claims to be general and lacking in detail. As the applicant did not attend, the tribunal could not ask her questions about her claims and therefore it concluded that she did not have a well-founded fear of persecution and so was not entitled to a visa.
There is no basis for setting aside the order made on 26 July 2005. The applicant has not identified error. The tribunal’s decision is based on findings of fact, which in turn are based on the applicant’s non attendance at the tribunal hearing. Some prospects for success need to exist if the interlocutory order is to be set aside. There are no prospects of success.
The application filed on 16 September 2005 is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 20 December 2005
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