SZENI v Minister for Immigration

[2005] FMCA 587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENI v MINISTER FOR IMMIGRATION [2005] FMCA 587

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: SZENI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG3004 of 2004

Delivered on: 3 May 2005

Delivered at: Sydney

Hearing date: 3 May 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Solicitors for the Respondent: Ms O Mak of 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 $2,400

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3004 of 2004

SZENI

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 6 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 August 2004 and handed down on 7 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 May 2004 to refuse to grant the applicant a protection (Class XA) visa.

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 “SZENI”.

2. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 7 February 2004. On 13 February 2004 she 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 11 May 2004 the delegate refused to grant a protection visa (CB pp.30-36) and on 9 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.37-40).

3. In her visa application, the applicant stated that she was born in Liaoning, China in 1972.  Prior to coming to Australia she stated her occupation was “saleswoman” in a department store from 1991 to April 2003.  The applicant stated she was unemployed from May 2003 until her departure for Australia in February 2004.  She stated that she lived at the same address in Dandong City in China from 1994 until 2004 when she departed for Australia.  The applicant claimed she has a child residing in China who was born in 1999 and that her mother also resides in China.  The applicant stated she entered Australia legally as a visitor on a passport in her name issued in September 2002 and valid until 2007.

4. The applicant stated she considered she was a refugee because she was mistreated by policemen in China because she was practising Falun Gong.  The applicant claimed that she was unwell after the birth of her child and practised Falun Gong in her district for a week.  She stated she then started to practise Falun Gong in the park after studying from books and after three months her stomach problem was “basically solved”.  The applicant stated that the central government banned the practice of Falun Gong in 1999, her books and tapes were confiscated by police and she was warned that she would be dismissed from her work unit if she continued to practise (CB pp.7, 51-52).

Reasons

1. The matter was listed for hearing in the Court’s non compliance list 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 any notification from the applicant indicating whether she intended to appear before the Court for the scheduled hearing.  The matter was called before me at 10.35 a.m.  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 of a 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 orders.

3. I have been requested by the solicitor 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 which the applicant, if she chooses, can apply to seek to have set aside.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  4 May 2005