SZEOY v Minister for Immigration

[2006] FMCA 378

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 378

MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to Rule13.03A(c) of the Federal Magistrates Court Rules 2001 as the applicant did not appear.

Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05(2)(a)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: SZEOY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3116 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 17 March 2006

Delivered at: Sydney

Delivered on: 17 March 2006

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Advocate for the Respondents: Mr A Cox

Solicitors for the Respondents: Phillips Fox Lawyers

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the failure of the applicant to appear.

3. The respondents by 24 March 2006 are to provide the applicant with written notice of today’s orders and to inform the applicant of the applicant’s rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,280.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG163 of 2004

SZEOY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 19 October 2004 for judicial review of the Refugee Review Tribunal (“the Tribunal”). The decision made on 30 August 2004 and handed down on

   
   

   23 September 2004, affirmed the decision of the delegate of the first respondent (“the delegate”) made on 10 May 2004 to refuse to grant the applicant a protection visa.  The applicant seeks relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been granted the pseudonym “SZEOY”.

3. The applicant has not sought to join the Tribunal as a party, however given that is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP  v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The applicant, who claims to be a citizen of Malaysia, arrived in Australia on 28 March 2004. On 7 May 2004, he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 10 May 2004, a delegate of the Minister refused to grant a protection visa and on 1 June 2004, the applicant applied to the Tribunal for a review of the delegate’s decision (Court Book (“CB”) 61). According to the protection visa application, the applicant is a 28 year old single male who is of Tamil ethnicity and Hindu religion. He is blind in one eye. He provides the names of 13 family members, all of whom are currently residents in Malaysia, but does not indicate his relationship to them. The applicant was born and has lived for the past 10 years in Kuantan Pahang. He was educated there for 10 years until 1992.

   
   

   He says he worked as a plumber from 1993 to 2003 (CB 63).

2. The applicant said in late 2002 he and a friend were at a local pub when they were involved in an incident between the friend and a couple of other customers.  The incident involved verbal abuse and confrontation.  The applicant was scared and asked his friend to stop and leave the pub with him.  The friend agreed.  As they were leaving the pub, other people followed them outside and the verbal abuse escalated into punching.  The applicant, who is of small build, was unable to stop the fight.  His friend however, knocked out two of the opponents.  The pub assistant called the police and the applicant and his friend fled the scene.  As they were leaving, one of the antagonists said he would get more of his gang, who were all Malay, to kill the friend when they saw him.  The applicant then detailed a series of events, which eventually led to his friend being killed and the applicant losing his right eye after a violent incident with members of the gang (CB 65).

Reasons

1. The matter was listed for hearing in the court at 10.15am today. 

   
   

   The matter did not immediately proceed because the applicant did not appear.  It was stood down for approximately 15 minutes to provide the applicant with a period of grace should he be experiencing difficulty in locating the Court.  Neither the Court nor the respondent’s solicitors received notification from the applicant to indicate whether he intended to appear for the scheduled hearing. 

2. In the circumstances, it seems appropriate that in the absence of the applicant, I should dismiss the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) which allows dismissal for default of appearance of a party. The applicant does not lose any substantive rights by this dismissal. He is entitled to apply to the Court to vary or set aside the orders if he wishes to do so. It is then a matter of discretion whether or not the Court will set aside the order.

3. The respondents were ordered by 24 March 2006 to give written notice to the applicant of today’s order, the effect of r.16.05(2)(a) of the Rules.

4. 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 first respondent’s costs and disbursements of and incidental to the application.  That order forms part of the orders that the applicant, if he chooses, can apply to have set aside.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  24 March 2006