SZEWX v Minister for Immigration

[2005] FMCA 1089

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWX v MINISTER FOR IMMIGRATION [2005] FMCA 1089

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of a party to appear.

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

Applicant: SZEWX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2156 of 2004

Delivered on: 28 July 2005

Delivered at: Sydney

Hearing date: 28 July 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

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

Counsel for the Respondent: Mr G T Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. 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.

2. The respondent by 4 August 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)(b) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2156 of 2004

SZEWX

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 13 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 July 2002 and handed down on 13 August 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on

   
   

   1 May 2001 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 “SZEWX”.

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 1 May 2001 the delegate refused to grant a protection visa (CB pp.32-39) and on 7 May 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.40-44).

3. In the applicant’s primary application, he stated he was born in 1966 in Didwana which is in the Rajasthan State of India.  He stated he had lived in Didwana until 1997 and then moved to Raising Nagar, also in the Rajasthan State.  The applicant stated his occupation was a self employed carpenter until 1996 and from 1997 to 2001 he was the owner of a “diesel and petrol pump”.  He claimed he is married with three sons who reside in India with his wife.  The applicant travelled to Australia on an Indian passport issued in 2000.

4. The applicant claimed that the area of Didwana is populated by Sikhs and in 1996 his family’s business was “crashed” by Sikhs because his family was in conflict with them.  He claimed his family sold their agricultural land and their house and moved to Raising Star where they bought a “diesel and petrol pump”.  The applicant claimed he was a Rajput Hindu.  Ninety percent of the population of Didwana are Jat Hindus and historically the two groups have been antagonistic to each other (CB p.60).

Reasons

1. This matter was listed for hearing in the Court at 2.15 p.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 any notification from the applicant indicating whether he intended to appear before the Court for the scheduled hearing.  The matter was called before me at 2.35 p.m.  The applicant was called three times in the Court precinct but failed to appear.

2. Mr G T Johnson of Counsel, appearing for the respondent, indicated the applicant appeared before Registrar McIllhatton on 13 October 2004 and had consented to and signed Short Minutes of Order setting the matter down for a final hearing in this Court today.  The respondent Counsel also tendered a copy of a letter forwarded to the applicant dated 21 July 2005 serving the written legal submissions filed by the respondent in these proceedings.  That letter also draws the applicant’s attention to the hearing of the matter on today’s date at 2.15 p.m. and details the location of the Court.  That letter was forwarded to the address nominated by the applicant for the service of all documentation in respect of the proceedings.

3. 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 Court Rules 2001 (Cth) which is dismissal for default of appearance of a party. The applicant does not lose any substantive right by the 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 orders. I have also made an order requiring the respondent solicitors to notify the applicant of the orders made in the Court today and his right to have those orders varied or set aside.

4. I have been requested by Counsel appearing for the respondent to make an order for costs.  I therefore order 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 seek 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:  Menna McMullan

Date:  29 July 2005