SZEKO v Minister for Immigration
[2005] FMCA 662
•12 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKO v MINISTER FOR IMMIGRATION | [2005] FMCA 662 |
| MIGRATION – Practice and procedure – application for review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
| Applicant: | SZEKO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2851 of 2004 |
| Delivered on: | 12 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr S Lloyd |
| 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) for default of appearance of the applicant.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2851 of 2004
| SZEKO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 December 2002 and handed down on
15 January 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 6 April 2001 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 “SZEKO”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 4 July 1994. On 13 September 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-34) (“CB”). On 6 April 2001 the delegate refused to grant a protection visa (CB pp.37-47) and on
17 April 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.48-51).
In his visa application, the applicant stated he was born in March 1968 and is a single Muslim Bangladeshi national, whose occupation is that of a cook. He arrived in Australia on 4 July 1994 with a passport issued to him in July 1992. The applicant stated that he gained a Bachelor of Science Degree in 1989 from the University of Dhaka and had lived in Saudi Arabia from 1992 to 1994. In a statutory declaration lodged with the visa application, the applicant stated he was born into a Sunni Muslim family but developed an interest in the Ahmadia religious philosophy and converted to the Ahmadia religion. The applicant stated that his conversion resulted in isolation during his schooling and that relatives and other Sunni community members became very suspicious of his activities and tried to prevent him from participating in Ahmadia religious practices. Because of his beliefs, the applicant claimed he was targeted by Sunni extremists who harassed him and tormented his family members. Eventually he was forced to obtain employment in Saudi Arabia in 1992 and continued to work there until June 1994 when his visa was due to expire. The applicant stated that, as he did not wish to return to Bangladesh, he sought a Student visa to Australia (CB pp.25-27).
Reasons
The matter was listed for a final hearing at 2.15 p.m. but did not immediately proceed at that time because there was no appearance by the applicant. Neither the Court nor the respondent’s solicitor had received notification from the applicant to indicate that he would not appear before the Court at the scheduled time. The matter was called in the Court precinct at 2.30 p.m. but the applicant failed to appear.
In all the circumstances, it seems 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 for default of appearance of a party. The applicant does not lose any substantive right 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 then a matter of discretion whether or not the Court will set aside the orders.
I have been requested by the Counsel appearing for the respondent to make an order for costs. I therefore order that the applicant shall pay the respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders in which the applicant, if he chooses, can apply to have set aside.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 18 May 2005
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