SZEFZ v Minister for Immigration
[2005] FMCA 314
•14 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFZ v MINISTER FOR IMMIGRATION | [2005] FMCA 314 |
| MIGRATION – Practice and procedure – application for judicial review of decision of Refugee Review Tribunal application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where applicant did not appear. |
Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZEFZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2608 of 2004 |
| Delivered on: | 14 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2608 of 2004
| SZEFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2004 and handed down on 27 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 12 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 “SZEFZ”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 1 December 2003. On 9 December 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 12 January 2004 the delegate refused to grant a protection visa and on 3 February 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
On 23 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). However, that application disclosed no grounds for review. On 10 September 2004 the applicant appeared before this Court at a directions hearing. During that directions hearing the applicant, by consent to Short Minutes of Order, agreed to file and serve an amended application giving full particulars of each ground of review to be relied upon by 22 December 2004. In addition, the applicant agreed to file and serve any written submissions on or before fourteen working days prior to the hearing date. The applicant did not comply with those orders. During the directions hearing the applicant also indicated she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and subsequently a member of that Scheme was allocated to provide the applicant with advice. A telephone conference took place on 2, 3 and 9 December 2004 with the final advice being given on 9 December 2004.
On 14 February 2005 the applicant presented to the Registry a letter dated 8 February 2005 indicating she was in Melbourne attending a Chinese herbal medical clinic and would be unable to attend the hearing on 14 March 2005 as she was ill. The applicant authorised an English speaking friend to receive any correspondence on her behalf and provided the Court with the friend’s telephone number. The friend was advised by telephone and letter dated 15 February 2005 that the applicant would need to forward to the Court a medical certificate provided by a registered medical practitioner detailing:
a)the nature and severity of the ill health;
b)
the ability of the applicant to engage in the proceedings on
14 March 2005; and
c)if the applicant was unable to attend Court on 14 March 2005, the expected date of her return to health.
A medical certificate was received from the Shanghai Traditional Medicine and Acupuncture Central of Balwyn, Victoria which identified the applicant and stated the diagnosis of “headache” and prescribed the treatment “to use acupuncture for ten times” and “have rest several days”. A further letter dated 1 March 2005 was forwarded to the applicant indicating that the medical certificate received did not meet the requirements as set out in the letter dated 15 February 2005. The request for medical particulars was repeated in the letter.
On 7 March 2005 a letter was received from a Dr Raymond Tung of Campsie, New South Wales, a registered medical practitioner, which simply stated:
“I saw the abovementioned patient today. She is suffering from recurrent syncope attack in the past one year.”
On my instructions, my Associate contacted Dr Tung to clarify the nature and severity of the applicant’s illness and her availability to attend the hearing, which was not apparent from the medical certificate. Dr Tung advised the applicant had had episodes of fainting. The doctor indicated that it was his intention to omit from the medical certificate any reference to the applicant not being fit to attend the scheduled Court hearing because in his view she was in fact fit.
Reasons
The matter was listed for hearing at 10.15 a.m. The matter did not immediately proceed at that time because there was no appearance by the applicant. The friend of the applicant was contacted by telephone but she indicated the applicant was not intending to attend Court. The matter was called before me at 10.25 a.m. The applicant was called three times in the Court precinct but there was no appearance.
In all the circumstances, it seemed appropriate that 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 in default of appearance of a party. The applicant does not lose any substantive rights by the dismissal. She is entitled to apply to the Court to vary or set aside the orders is she 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 Counsel appearing for the respondent to make an order for costs and I indicated I would do so. That, of course, formed part of the orders which the applicant, if she chooses, can apply to seek to have set aside.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 March 2005
0
0
0