SZEPP v Minister for Immigration

[2005] FMCA 316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPP v MINISTER FOR IMMIGRATION [2005] FMCA 316

MIGRATION – Practice and procedure – application for judicial review of decision of Refugee Review Tribunal – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where applicant did not appear.

Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B

Applicant: SZEPP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 3143 of 2004

Delivered on: 11 March 2005

Delivered at: Sydney

Hearing date: 11 March 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

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

2. The applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3134 of 2004

SZEPP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 August 2004 and handed down on 2 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 July 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 “SZEPP”.

2. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 23 November 2002 as a student. In July 2004 he was taken into immigration detention and on 23 July 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 29 July 2004 the delegate refused to grant a protection visa and on 3 August 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.

Reasons

1. The matter was listed for hearing on 11 March 2005 but there was no appearance by the applicant.  The applicant appeared at a directions hearing on 3 November 2004 before Registrar McIllhatton when an expedited final hearing date was allocated because the applicant was in detention.  A letter was forwarded to the applicant at the Villawood Immigration Detention Centre dated 5 November 2004 confirming the details of the scheduled final hearing date.  The applicant has subsequently been released from detention.

2. The matter was listed for 10.15 a.m. but did not immediately proceed at that time because the applicant had not made an appearance.  The matter subsequently proceeded at 10.30 a.m. in order to give the applicant a period of grace should he have been delayed in transit to the Court.  The matter was called three times in the Court precinct but there was no appearance by the applicant.  No details of a contact telephone number for the applicant were available from the Court file.

3. In 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 a dismissal in default of appearance of a party. The applicant does not lose any substantive right by that 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 order.

4. I was also asked by Counsel for the respondent to make an order for costs and I indicated I would do so.  That, of course, forms part of the orders which the applicant, if he chooses, can apply to seek 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: 22 March 2005