SZEZB v Minister for Immigration
[2005] FMCA 1772
•18 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZB v MINISTER FOR IMMIGRATION | [2005] FMCA 1772 |
| 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. |
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: | SZEZB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2332 of 2004 |
| Delivered on: | 18 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Ms N McLaughlin |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 25 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) and the Court’s expectation that any application made by the applicant to set aside today’s orders be made within twenty-one (21) days.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2332 of 2004
| SZEZB |
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 23 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
11 June 2004 and handed down on 24 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
9 February 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 “SZEZB”.
The respondent tendered and applied for an affidavit of Naomi McLaughlin sworn on 4 November 2005 (“the affidavit of Ms McLaughlin”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitor was filed and served on
14 January 2005.
Background
The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia on 5 January 2004. On 30 January 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (CB pp.1-34). On 9 February 2004 the delegate refused to grant a protection visa (CB pp.37-57) and on 2 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.58-61).
The applicant is a married Sinhalese woman with four children who remain in Sri Lanka. The applicant lived at the one address in Kochchikade (just north of Negombo) from 1993 to 2004. She completed 12 years of education to 1987 in Negombo, was married in Negombo in 1988 and was employed as a stores assistant from 2000 to July 2003 (CB p.126).
The applicant claimed she married against her family’s wishes and that her husband had been detained on numerous occasions for his involvement in drug trafficking and political violence. He was notorious and especially influential among the Janatha Vimukthi Peramuna (“JVP”) politicians. The JVP was a former militant Marxist party that employed violent tactics and was involved in two violent insurrections in the early 1970’s and late 1980’s and has re-emerged as a third force in politics in southern Sri Lanka. The applicant’s husband’s involvement with the JVP led to long absences from the matrimonial home without explanation to his wife as to his activity or whereabouts. This activity resulted in numerous visits by the police attempting to locate the husband and interrogation of the applicant as to the husband’s activities. The applicant last saw her husband in 1997 and there was no contact or information as to his whereabouts since that time. The applicant claimed of her increasing fear due to the activities of various parties associated with the JVP in criminal activities and the constant harassment by the police and authorities seeking to determine details of those activities (CB pp.136-137).
Reasons
The matter was listed for hearing in the Court at 10.15 a.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 she have experienced difficulty in locating the Court. Neither the Court nor the respondent’s solicitors received notification from the applicant to indicate whether she intended to appear before the Court for the scheduled hearing. The matter was called before me at 10.30 a.m. but there was no appearance by or on behalf of the applicant.
The affidavit of Ms McLaughlin served in these proceedings indicated on 4 October 2005 she requested a movement check to be conducted by the respondent. A copy of that movement check conducted in relation to the applicant was attached to the affidavit. The document recorded that the applicant left Australia on 3 December 2004 and at the time of the movement check the applicant had not re-entered Australia. The respondent’s solicitors also forwarded a letter to the applicant via Express Post reminding the applicant of the hearing scheduled before this Court and enclosed a copy of the respondent’s outline of submissions that would be relied upon during the hearing. That letter was forwarded to the applicant’s last recorded address filed with the Court and the Department. No response was received.
In all the circumstances, it seemed appropriate 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) (“the Rules”) which is a dismissal for default of appearance of a party. The applicant does not lose any substantive rights by this dismissal. She is entitled to apply to the Court to vary or set aside the orders if she wishes to do so. It is then a matter for discretion whether or not the Court will set aside the orders.
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
25 November 2005 and the Court’s expectation that any application made by the applicant to set aside today’s orders to be made within twenty-one (21) days
I have been requested by the solicitors for the respondent to make an order for costs and 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 that the applicant, if she chooses, can apply to seek to have set aside.
I certify that the preceding eleven (11) 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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