SZERM v Minister for Immigration

[2005] FMCA 781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERM v MINISTER FOR IMMIGRATION [2005] FMCA 781

MIGRATION – Practice and Procedure – 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

Applicant: SZERM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 3301 of 2004

Delivered on: 7 June 2005

Delivered at: Sydney

Hearing date: 7 June 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Solicitors for the Respondent: Mr I Muthalib of Blake Dawson Waldron

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for 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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3301 of 2004

SZERM

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 9 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 September 2004 and handed down on 5 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 16 April 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 “SZERM”.

2. The applicant, who claims to be a citizen of Mongolia, arrived in Australia on 21 February 2004. On 2 April 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.1-30) (“CB”). On 16 April 2004 the delegate refused to grant a protection visa (CB pp.33-43) and on

   
   

   25 May 2005 the applicant lodged an application for with the Tribunal for a review of the delegate’s decision (CB pp.44-47).

3. The applicant is a single male born in July 1973.  He stated his ethnic group is Mongolian and that he speaks, reads and writes Mongolian.  The applicant listed his occupation prior to his arrival in Australia as a driver.  Between the period of 1992 and his departure for Australia the applicant claimed he worked as a driver at a bus depot.  The applicant claimed he had eleven years of education and holds the qualification of an oil technician which he gained in 1992.

4. In a statement attached to his visa application, the applicant stated he was a member of the New Leaders Club which was established in September 1996 and which had the objective of improving the situation in Mongolia.  The objective of the Club was to concentrate on a peaceful change of the government in Mongolia by agitation in the pre Parliamentary election period against policies and methods used by the current Parliament which was represented mostly by members of the Mongolian People’s Revolutionary Party (MPRP).  The applicant claimed he spoke to people including his workmates in regard to the forthcoming election.  He stated that at the end of 2003 he was called to the local police station where he was interrogated by police officers in respect of his association with the New Leaders Club.  A police officer explained to the applicant that the authorities were unhappy with the activities of the New Leaders Club and advised him to cease agitation against the MPRP and to concentrate on his job.  This intervention by the police and the security services officers resulted in the most active members of the New Leaders Club deciding they should go overseas in order to avoid persecution (CB pp.26-27).

Reasons

1. The matter was listed for a non compliance hearing at 10.45 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 solicitor had 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 11.15 a.m.  The applicant was called in the Court precinct but failed to appear.

2. In all the circumstances, it seemed appropriate in the absence of the applicant, I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Rules 2001 (Cth) which is dismissal for default of appearance of a party.  The applicant does not lose any substantive rights by the 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 orders.

3. I have been requested by the solicitor appearing for the respondent to make an order in regard to 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 he chooses, can apply 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:  7 June 2005