SZEAT (No.2) v Minister for Immigration

[2005] FMCA 1695

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAT (No.2) v MINISTER FOR IMMIGRATION [2005] FMCA 1695

MIGRATION – Practice and Procedure – application for judicial review of Migration Review Tribunal decision – 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.2)

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2060 of 2005

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

1. I direct that the applicant in these proceedings is to be known as “SZEAT (No. 2)” as he has other proceedings before this Court where he is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth). and has been given the pseudonym “SZEAT (No. 1)”.

2. 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.

3. 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.

4. The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2060 of 2005

SZEAT (No.2)

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. 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 4 August 2005 for a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 15 July 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 November 2003 to refuse to grant the applicant a Bridging A (Class WA) visa. The applicant seeks relief against the decision of the Tribunal.

2. 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. 2)”. The applicant is involved in other proceedings seeking a judicial review of a Refugee Review Tribunal decision, Federal Magistrates Court proceeding number SYG2305 of 2004 and has been given the pseudonym “SZEAT (No. 1)”.

3. At a directions hearing on 11 October 2005 I made orders that the matter should be considered at the same time as SZEAT (No. 1) which was scheduled for hearing on 4 November 2005.

Reasons

1. 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.

2. In 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.

3. I have been requested by the solicitor appearing for the respondent to make an order for costs.  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 six (6) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan  Date:  9 November 2005