SZEYG v Minister for Immigration
[2005] FMCA 1465
•15 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYG v MINISTER FOR IMMIGRATION | [2005] FMCA 1465 |
| 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. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), r.16.05(2)(a)
| Applicant: | SZEYG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2250 of 2004 |
| Delivered on: | 15 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr J Mitchell |
| 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 22 September 2005 is to provide the applicant with written notice of the orders of 15 September 2005 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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2250 of 2004
| SZEYG |
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) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2004 and handed down on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
10 March 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
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 “SZEYG”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 24 February 2004. On 5 March 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.1-28) (“CB”). On
10 March 2004 the delegate refused to grant a protection visa (CB pp.31-41) and on 13 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.42-45).
In a statutory declaration attached to his original visa application, the applicant claimed he was born in Henan Province of the People’s Republic of China and is ethnically Chinese. He claimed he worked as a technician in the state operated Kaifeng Instrument Factory. The applicant claimed in recent years the People’s Republic of China authorities had started new policies aimed at structural reform, including the ownership of state operated enterprises which allowed the purchase of shares within the enterprise. He claimed that the top leaders of the enterprise always held the main shares (CB p.25).
The applicant claimed in January 2003 these reforms started in the Kaifeng Instrument Factory but 60% of the shares had been allocated freely to the senior leaders of the factory meaning most employees could not afford to purchase shares. In February 2003 he claimed he joined with other employees, including Yun Long Feng and Xiao Jun Ma, in organising a rally within the factory demanding that all staff should have a fair and equal right to become shareholders in the factory. The applicant claimed he tried to encourage more factory employees to openly support Mr Feng and Mr Ma’s activities and organise the distribution of propaganda material made by them to the employees and higher authorities of the government. In May 2003 the applicant claimed Mr Feng and Mr Ma, as well as more than twenty other activists including himself, were dismissed by the factory with the excuse they were destroying normal structural reform (CB pp.25-26).
The applicant stated it was obvious there was no free speech in China and people who dared to express different opinions were subjected to unfair treatment. He joined the Freedom Group established by Mr Feng and Mr Ma in July 2003 and gradually became a key member, with the sole aim of the group to seek freedom of speech. The applicant claimed his role was to distribute the propaganda materials provided by Mr Feng and Mr Ma and other group members. The applicant claimed that a number of the members of this group were arrested by the Public Security Bureau (“PSB”) and Mr Feng assisted him in obtaining the appropriate documents to leave China for overseas. Shortly after his departure, the applicant claimed Mr Feng was arrested by the PSB (CB pp.26-27).
Reasons
The matter was listed for final hearing in this Court at 2.15p.m. however 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 communication from the applicant indicating whether he intended to appear before the Court at the scheduled hearing. The matter was called before me at 2.35p.m. but there was no appearance by or on behalf of the applicant. 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 been requested by the Counsel 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 seek to have set aside. The respondent was ordered by 22 September 2005 to give written notice to the applicant of the orders of the Court, the effect of Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) and the Court’s expectation that any application made by the applicant to set aside the orders of the Court to be filed within twenty-one 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 September 2005
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