SZERL v Minister for Immigration
[2005] FMCA 1774
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERL v MINISTER FOR IMMIGRATION | [2005] FMCA 1774 |
| 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. |
Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05(2)(a)
| Applicant: | SZERL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3300 of 2004 |
| Delivered on: | 21 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Mr K Sinnadurai |
| 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) due to the failure of the applicant to appear.
The respondent by 28 November 2005 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,200
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3300 of 2004
| SZERL |
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), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
13 September 2004 and handed down on 7 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
20 May 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZERL”.
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 6 May 2004. On 13 May 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.1-32) (“CB”). On 20 May 2004 the delegate refused to grant a protection visa (CB pp.35-49) and on 21 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.51-55).
The applicant claimed he is a Falun Gong practitioner and the leader of the Falun Gong organisation in his city. He claimed he was detained for almost one month, tortured and forced to renounce Falun Gong. During that month the applicant claimed that his employer stopped paying him and his wife was required to report in to the authorities. He stated his wife was dismissed from her factory job on account of her participation in Falun Gong after having been employed there for more than ten years. As a result, the applicant claimed that his family has suffered economically and psychologically. He claimed his family had to borrow money to support their son’s education and feared that their son may be persecuted as a result of their participation in Falun Gong. The applicant stated that friends in government offices assisted him to secure a passport and visa for Australia. The applicant stated that he “did not know what would happen to us in the future” (CB p.71).
Reasons
The matter was listed for hearing in the Court at 2.15 p.m. However, the matter did not immediately proceed at that time because there was no appearance by the applicant. The matter was stood down for approximately fifteen minutes to provide the applicant with a period of grace should he have experienced difficulty in locating the Court. Neither the Court nor the respondent’s solicitor received notification from the applicant to indicate whether he intended to appear before the Court for the scheduled hearing. The matter was called before me at 2.30 p.m. but there was no appearance by or on behalf of the applicant. The matter was called three times in the Court precinct but there was no appearance.
In all the circumstances, it seemed appropriate in the absence of the applicant, that I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) which is dismissal for default of appearance of a party. The applicant does not lose any substantive right by this 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.
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 that the applicant, if he chooses, can apply to have set aside.
Pursuant to Rule 16.05(2)(a) of the Rules, the respondent was ordered to give written notice to the applicant of today’s orders by
28 November 2005 and the Court’s expectation that any application made by the applicant to set aside today’s orders is to be made within twenty-one (21) days.
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: 30 November 2005
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