SZEIT v Minister for Immigration
[2005] FMCA 434
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIT v MINISTER FOR IMMIGRATION | [2005] FMCA 434 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed due to default of appearance of party. |
Migration Act 1958 (Cth), ss.91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)
| Applicant: | SZEIT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2763 of 2004 |
| Delivered on: | 17 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of a party
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 |
SYG2763 of 2004
| SZEIT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was set down for final hearing on 17 March 2005. There was no appearance by the applicant and attempts to contact the applicant by telephone were unsuccessful. The matter was delayed for approximately 20 minutes to give the applicant a period of grace should he be delayed travelling to the Court or experiencing some difficulty in locating the Court. Counsel for the respondent asked for an order dismissing the application in accordance with the Federal Magistrates Court Rules 2001 (Cth) on the ground that the applicant failed to appear. As this is an interlocutory order it was appropriate to accede to the application made by the respondent Counsel and dismiss the matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 July 2004 and handed down on 17 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 March 2003 to refuse to grant the applicant a protection (Class XA) 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 “SZEIT”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia in December 2002 on a temporary business visa. On 8 January 2003 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 13 March 2003 the delegate refused to grant a protection visa and on 14 April 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant purportedly seeks review of two (alleged) decisions of the Tribunal. It was the second of the decisions that was the final and operative decision of the Tribunal. The decision was made by the Tribunal after it was reconstituted and after the first decision had been recalled. The Tribunal conducted the first hearing on 24 March 2004 and arrived at its decision on 25 March 2005 and was handed down on 15 April 2004. As a result of a complaint made by the applicant on 30 March 2004, the handing down of the Tribunal’s decision was postponed at the direction of the Deputy Principal Member and the applicant was notified. Subsequently, the Tribunal was reconstituted under s.422 of the Act by the Principal Member who so advised the applicant by letter dated 21 April 2004. The Tribunal constituted by Mr Giles Short, then conducted a further hearing on 14 May 2004 and made a decision on the merits on 28 July 2004. That decision was handed down on 17 August 2004.
The applicant filed a document titled “Amended Grounds” on
25 February 2005. The document took the form of a narrative, perhaps intended as a submission and contained a list of amended grounds. The respondent’s solicitors filed an outline of submissions in response to the amended grounds document filed by the applicant.
The applicant appeared before me at a directions hearing on
17 September 2004 at which time the final hearing date was set and the applicant was provided with Short Minutes of Order which set down the time, date and place of that hearing together with a map giving the location of the Courts in the John Maddison Tower. The respondent’s solicitors forwarded by Express Post by way of service sealed a letter to the applicant with the respondent submissions and a list of authorities on 14 March 2005. Within that letter was a reference to the hearing being listed and giving the time, date and place and including a map to assist the applicant in locating the Court building.
Reasons
The matter was listed for final hearing at 2.15 p.m. The matter did not immediately proceed at that time because there was no appearance by the applicant. An attempt was made to contact the applicant by telephone but the mobile number was switched off at the time. The matter was called before me at 2.35 p.m. and an instruction was given to my associate to call the matter three times in the Court precinct. However, there was no appearance by the applicant.
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 the dismissal of an application in default of appearance of a party. The applicant does not lose any substantive rights by dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is a matter of discretion whether or not the Court will set aside the orders.
I have been requested by Counsel for the respondent to make an order for costs and I indicated I would do so. That, of course, forms part of the orders which the applicant, if he chooses, can apply to have set aside. I therefore order the applicant to pay the respondent’s costs and disbursements of and incidental to the application
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: 15 April 2005
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