SZEKX v Minister for Immigration
[2005] FMCA 661
•12 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKX v MINISTER FOR IMMIGRATION | [2005] FMCA 661 |
| 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: | SZEKX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2870 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: | Ms R Francois |
| 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2870 of 2004
| SZEKX |
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 17 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 July 2004 and handed down on 17 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 April 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 “SZEKX”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 15 April 2004. On 23 April 2004 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.1-26) (“CB”). On
30 April 2004 the delegate refused to grant a protection visa (CB pp.31-40) and on 2 June 2004 the applicant lodged a review of the delegate’s decision with the Tribunal (CB pp.41-45).
In his visa application, the applicant stated he was a male who was born in November 1959 and was a resident of Ganjinziqu, Dalian City, Heilongjiang Province in the People’s Republic of China. He claimed he was a manager in the Dalian Accountant Society. The applicant stated that he became a Falun Gong practitioner in 1996 in an attempt to cure severe back pain. He claimed that since starting Falun Gong the back pain had been relieved. The applicant stated that he encouraged his colleagues to practise Falun Gong and they all received benefits from the practice. When Falun Gong was banned in 1999, the applicant stated that he and his colleagues posted hundreds of banners and flyers “to reveal the truth behind the PRC’s crackdown against Falun Gong” (CB p.23).
The applicant claimed he was arrested on the street while posting flyers and was detained in the Dalian detention centre for fifteen days before being sentenced to ten months imprisonment at the Heilongjiang No. 1 Jail. He claimed that during his imprisonment he was tortured which led to a severe deterioration in his health and resulted in him being released on medical parole. To avoid further imprisonment or harassment, the applicant stated that he departed for Australia as a visitor (CB pp.23-24).
Reasons
The matter was listed for a final hearing at 10.15 a.m. The matter 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 respondent’s solicitor advised my associate that she had spoken to the applicant with the assistance of a Mandarin interpreter on the preceding day to confirm the applicant was aware of the time, date and location of the hearing. The applicant confirmed that he would be in attendance.
With the assistance of the Court interpreter the applicant was telephoned on the contact number provided with his application in these proceedings. The applicant advised the interpreter that he was in Newcastle and that it was his understanding that his Court appearance was for the following day, 13 May 2005.
The applicant had appeared before me at a directions hearing on
1 October 2004 where he was provided with details as to the time, date and location of the final hearing. Particular emphasis was placed on the location of the Court and time of the hearing as it was scheduled for the John Maddison Tower Building and not at the Queens Square building where the directions had been held.
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 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 ten (10) 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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