SZEVQ v Minister for Immigration

[2005] FMCA 574

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVQ v MINISTER FOR IMMIGRATION [2005] FMCA 574

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

Federal Magistrates Court Rules 2001, Rule 13.03A(c)
Migration Act 1958 (Cth), s.91X

Applicant: SZEVQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2101 of 2004

Hearing date: 12 April 2005

Delivered at: Sydney

Orders made: 12 April 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Solicitors for the Respondent: Mr D A Bell of Blake Dawson Waldron

ORDERS

1. The respondent’s Notice of Motion is upheld.

2. The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2101 of 2004

SZEVQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter was set down for a hearing of a Notice of Motion on 12 April 2005.  There was no appearance by the applicant at the hearing.  The matter was delayed approximately twenty minutes to give the applicant a period of grace should he have been delayed travelling to the Court or experienced some difficulty in locating the Court.  The solicitor for the respondent asked for an order dismissing the application in accordance with the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds that the applicant failed to appear. In the circumstances, I considered it appropriate to accede to the application made by the respondent’s solicitor and dismiss the matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.

The proceedings

1. This was an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 September 2002 and handed down on 25 September 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 25 April 2001 to refuse to grant the applicant a protection 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 “SZEVQ”.

2. The applicant, who claims to be a citizen of India, arrived in Australia on 9 March 2001. On 23 March 2001 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.1-28) (“CB”). On 25 April 2001 the delegate refused to grant a protection visa (CB pp.29-37) and on 9 May 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.38-41).

3. The applicant stated he was born in July 1964 and is a citizen of India from Kuchera in Rajastan.  He claims to speak, read and write Hindi and is a Muslim.  The applicant resided at the same address from 1991 to 2001 when he departed India for Australia.  He claimed he underwent eleven years of education and listed his occupation as a self-employed farmer.  The applicant departed India on a passport issued in the usual manner and without difficulty by the Indian Government on 13 April 1992 which was valid until 12 April 2002.  The applicant stated he is married with five children (CB p.72).

Reasons

1. The matter was scheduled for hearing in the Notice of Motion list at 12.15 p.m.  The matter did not immediately proceed at that time because there was no appearance by the applicant.  The matter was called before me at 12.35 p.m. and an instruction was given to my associate to call the matter three times in the Court precinct.  However, there was no appearance by the applicant.

2. For the purpose of the Notice of Motion the respondent tendered and applied for an affidavit of Dean Anthony Bell sworn on 12 April 2005 (“the affidavit of Mr Bell”) to be admitted into evidence.  A Court Book, prepared by the respondent’s solicitors, was filed and served on 29 October 2004.  Contained within the affidavit of Mr Bell and marked “A1” was a letter forwarded by the respondent’s solicitors by Express Post to the applicant’s address for service on 4 April 2005.  Also annexed to the affidavit of Mr Bell and marked “A2” was a letter from the respondent’s solicitors forwarded by Express Courier to the applicant’s residential address on 4 April 2005.

3. Mr Bell indicated to the Court that at the date of swearing the affidavit neither he nor the firm of Blake Dawson Waldron, Solicitors had had returned to them the original letters marked “A1” or “A2”.  In the body of the both letters addressed to the applicant were clear details as to the time, date and venue of the hearing together with a copy of the Notice of Motion that was the subject of the hearing.

4. In all the circumstances, it seemed appropriate that in the absence of the applicant, I should dismiss the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which is dismissal of an application in default of appearance of a party. The applicant does not lose any substantive rights by dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. This would be a matter of discretion as to whether or not the Court would set aside the orders.

5. I have been requested by the solicitor for the respondent to make an order for costs and I indicated that I would do so.  That, of course, forms part of the orders that the applicant, if he chooses, may apply to have set aside.  I therefore order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

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

Associate:  Menna McMullan

Date:  3 May 2005