SZELV v Minister for Immigration

[2005] FMCA 709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELV v MINISTER FOR IMMIGRATION [2005] FMCA 709

MIGRATION – Practice and procedure – application for judicial review of Refugee 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.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)

Applicant: SZELV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2932 of 2004

Delivered on: 23 May 2005

Delivered at: Sydney

Hearing date: 23 May 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Counsel for the Respondent: Ms S A Mason

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.

2. 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 2932 of 2004

SZELV

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) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 August 2000 and handed down on 6 December 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 September 1999 to refuse to grant the applicant a protection (Class AZ) visa. The applicant seeks unstated relief against the decision of the Tribunal.

Background

1. 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 “SZELV”.

2. The applicant, who claims to be a citizen of Indonesia, arrived in Australia on 8 August 1998. On 7 September 1998 she lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.11-16) (“CB”). On 20 September 1999 the delegate refused to grant a protection visa (CB pp.24-38) and on

   
   

   19 October 1999 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.39-42).

3. The applicant claimed that she was born in August 1974 of Chinese ethnicity.  She stated she was born in Sigli, Aceh province but had lived in Jakarta for most of her life.  In a statement attached to her visa application, the applicant stated she had owned two grocery shops in Jakarta and that they and her house were looted and burnt down.  She stated that some of her female relatives living in Jakarta had been sexually assaulted by local Indonesians and she feared she would be similarly assaulted or killed if she returned to Indonesia (CB p.1).  The applicant stated that she had completed twelve years of education and had been employed as a manager in a company from 1993 to 1998 (CB p.15).

Reasons

1. The matter was listed for 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 solicitors had received any notification from the applicant indicating her attention to appear before the Court for the scheduled hearing.  The matter was called before me at 2.35 p.m. and the applicant was called three times in the Court precinct but failed to appear.

2. 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 by the party. The applicant does not lose any substantive right by the dismissal. She is entitled to apply to the Court to vary or set aside the order if she wishes to do so. It is then a matter of discretion whether or not the Court will set aside the order.

3. I have been requested by Counsel appearing for the respondent to make an order for costs.  I therefore order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.  That order forms part of the orders that the applicant, if she 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:  26 May 2005