SZEAT (No.1) v Minister for Immigration
[2005] FMCA 1694
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAT (No.1) v MINISTER FOR IMMIGRATION | [2005] FMCA 1694 |
| MIGRATION – Practice and Procedure – application for judicial review of Refugee Review Tribunal decision – application seeking an order made pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) being set aside – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear. |
Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10A(c), 16.05(2)(a)
| Applicant: | SZEAT (No.1) |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2305 of 2004 |
| Delivered on: | 4 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Ms O Mak |
| Solicitors for the Respondent: | 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 respondent by 11 November 2005 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) and the Court’s expectation that any application made by the applicant to set aside today’s orders be made within twenty-one (21) days.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2305 of 2004
| SZEAT (No. 1) |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By this application filed on 5 August 2005 the applicant moves the Court for orders seeking that a previous order of this Court made on
12 July 2005, dismissing the matter due to the failure of the applicant to appear pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), be set aside.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 July 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 June 2004 and handed down on 28 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
22 December 2003 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEAT (No. 1)”.
Litigation history
The relevant litigation history of the applicant is set out in the written submissions prepared on behalf of the respondent by Ms O Mak and
I adopt paragraph 1 of those submissions for the purpose of this judgment:
On 12 December 2003 the applicant lodges an application for protection (class XA) visa.
On 22 December 2003 the delegate of the Minister refuses the grant of the protection visa.
On 19 January 2004 the applicant applies for Refugee Review Tribunal ("RRT") review of the delegate's decision.
On 26 February 2004 the RRT invites the applicant to attend a hearing on 14 April 2004 to give oral evidence and present arguments in support of his claims.
On 17 March 2004 the RRT writes to the applicant to inform him that the hearing on 14 April 2004 has been rescheduled to 13 April 2004.
On 24 March 2004 the RRT writes to the applicant to inform him that the RRT has formed the preliminary view that the applicant's application is not valid pursuant to sections 91N and 91P(2) of the Migration Act 1958 and cannot be considered. The RRT invites the Applicant to provide any information or submissions in relation to the validity of his application.
On 13 April 2004 the RRT writes to the applicant to inform him that the hearing on 13 April 2004 has been rescheduled to 19 April 2004.
On 14 April 2004 the applicant writes to the RRT requesting that the hearing date be adjourned.
On 16 April 2004 the RRT writes to the applicant advising him that the hearing date will not be adjourned.
On 18 April 2004 the RRT receives response to hearing invitation completed by the applicant.
On 19 April 2004 the RRT writes to the applicant to inform him that the hearing on 19 April 2004 has been rescheduled to 3 May 2004.
On 3 May 2004 the applicant attends the RRT hearing and gives evidence.
On 18 June 2004 the RRT sets aside the delegate's decision of
22 December 2003 refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered.On 22 July 2004 the applicant applies to the Federal Magistrates Court for judicial review of the RRT decision.
On 12 July 2005 the matter set down for hearing of application for summary dismissal. Federal Magistrate Lloyd Jones dismisses the application for non appearance of the applicant.
On 19 July 2005 Orders are entered.
On 5 August 2005 the applicant files an application seeking to set aside the orders made on 12 July 2005.
Reasons
The matter was listed before me for directions on 11 October 2005. On that date the applicant appeared with the assistance of a Bengali interpreter. At that time it was explained to the applicant the nature of the hearing to be held on 4 November 2005. I am satisfied that at that time it was made abundantly clear to the applicant that the matter would be heard on this date in this Court at 2.15 p.m.
The matter was listed for hearing in the Court’s direction list at 2.15 p.m. today. However, the matter did not immediately proceed at that time because there was no appearance by the applicant. The applicant was provided with a period of grace should he be experiencing some difficulty in reaching the Court at the scheduled hearing time. Neither the Court nor the respondent solicitor had received any notification from the applicant indicating whether he intended to appear before the Court at the scheduled hearing. The matter was called before me at 2.30 p.m. but there was no appearance by or on behalf of the applicant.
In all the circumstances, it seemed appropriate in the absence of the applicant that I should dismiss the application pursuant to Rule 13.03A(c) of the Rules, which is dismissal for default of appearance of a party. The applicant does not lose any substantive rights by this 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 that order.
The respondent was ordered by 11 November 2005 to give written notice to the applicant of today’s orders, the effect of Rule 16.05(2)(a) of the Rules and the Court’s expectation that any application made by the applicant to set aside those orders to be made within twenty-one (21) days.
I have been requested by the solicitor appearing for the respondent to make an order for costs on an indemnity basis. In the absence of any explanation as to why the applicant failed to appear before the Court today, I support the application for costs on an indemnity basis.
I therefore order the applicant to pay the respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders that the applicant, if he chooses, can apply to have set aside.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 November 2005
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