SZFCR v Minister for Immigration - [2005] FMCA 688

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCR v MINISTER FOR IMMIGRATION

[2005] FMCA 688

MIGRATION – Visa – protection visa application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People's Republic of China – where applicant did not attend RRT hearing.

PRACTICE & PROCEDURE – Summary dismissal – Applicant filed no amended application or affidavit – applicant did not attend hearing.

Migration Act 1958 (Cth), s.425, 426A
Federal Magistrates Court Rules2001 Rr 13.03; 13.03A, 13.03A(c)

Applicant:

SZFCR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3459 of 2004

Judgment of:

Scarlett FM

Hearing date:

3 May 2005

Date of Last Submission:

3 May 2005

Delivered at:

Sydney

Delivered on:

3 May 2005

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Mr Bell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed pursuant to Rule 13.03 due to the failure of the applicant to comply with a Court order.
The application is dismissed pursuant to Rule 13.03A(c) due to the absence of the Applicant.
The Applicant is to pay the Respondent’s costs fixed in the sum of $2,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3459 of 2004

SZFCR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal which was made on 30 September 2004 and handed down on 26 October 2004.
The applicant is a citizen of the People’s Republic of China.

She arrived in Australia on 2 May 2004 and on 7 May lodged an application for a Protection Class XA Visa. On 18 May 2004 a delegate for the Minister refused to grant that visa.
On 18 June the applicant applied to the Refugee Review Tribunal for a review of that decision.
On 27 August 2004 the Refugee Review Tribunal wrote to the applicant advising her that it had considered all the material before the Tribunal relating to her application but it was unable to make a favourable decision on that information alone subject to s.425 of the Migration Act. Accordingly the Tribunal invited the applicant to attend a hearing on 27 September 2004 so that she could give oral evidence and present any submissions that she might make. She would also be in a position to call other people to give evidence on her behalf.
The Tribunal did not receive any reply to that letter. The applicant did not appear at the Tribunal hearing on 27 September 2004.

The Tribunal, not having heard from the applicant at all, made a decision pursuant to s.426A of the Migration Act that it would make its decision on the review on the basis of the material that it had before it without taking any further action to invite the applicant to appear.
The Tribunal considered the applicant’s case. The Tribunal member commented that as the applicant did not attend an oral hearing her claims could not be tested by the Tribunal. The Tribunal only had the information contained in the written material for it. The Tribunal noted that the applicant had provided conflicting written statements about her gender, not that that would be a disqualifying factor, but the information the Tribunal noted was vague and if the applicant had attended the hearing the concerns that the Tribunal had could well have been determined.
The Tribunal noted that there was nothing to support the applicant’s claims relating to her professed following of the Falun Gong practice apart from her assertions and two pages of information concerning Falun Dafa or Falun Gong. The Tribunal was of the view that there were insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that the events that the applicant had referred to had, in fact, happened. Because the applicant had not attended the hearing the Tribunal was unable to test her credibility.
The Tribunal was not satisfied that the applicant had been of adverse interest to the authorities in the People’s Republic of China or that she was dismissed from her employment as a result or that she was interrogated.
The Tribunal was not satisfied that the applicant had commenced the practice and propagation of the Falun Gong doctrine in Australia. The Tribunal also found that the applicant’s claim that she would be persecuted if she returned to China to be unsubstantiated and the Tribunal was not satisfied that as to her claims in that regard.
The Tribunal was not able to be satisfied from the evidence before it that the applicant faced a real chance of persecution should she return to the People’s Republic of China at the time of the hearing or in the foreseeable future.
The Tribunal was unable to be satisfied, on the evidence before it, that the applicant had a well-founded fear of persecution for a convention reason and accordingly affirmed the decision of the delegate of the Minister not to grant the applicant a Protection Visa.
The applicant has not attended the hearing today despite the fact that the applicant did attend the directions hearing where the matter was listed for hearing before me today.
The application was listed for hearing at 2.15 pm. The solicitor for the respondent, Mr Bell, appeared as did the Mandarin interpreter.

There was no sign of the applicant. I stood the matter down for half an hour and at 2.48 pm called the matter again. The applicant was called outside the courtroom three times and no one appeared to answer the call. I have inquired from my chambers staff as to whether any telephone call or fax or other information has been received from the applicant advising that she has been delayed or somehow hindered or prevented from attending Court today for any reason. No messages have been received I am informed.
The solicitor for the respondent has been able to inform the Court that neither he nor his firm have received any messages from the applicant indicating any difficulty in her attending here today.
Accordingly, I am asked to exercise the Court’s discretion to dismiss the application. It seems to me that there are two grounds at this stage which would justify an application for dismissal. The first is under rule 13.03 which relates to default in taking a required step.

The applicant had been ordered to file and serve an affidavit stating the facts upon which she sought to rely and an amended application.

No such document has been filed or served.
As that is a step required by an order of the Court that, of itself, is ground for dismissal and I propose to dismiss the application pursuant to rule 13.03 on the basis that the applicant has failed to comply with an order of the Court in that she did not file and serve an affidavit stating the facts upon which she sought to rely or an amended application.
I note also that the applicant has failed to attend Court today without any explanation.
Rule 13.03A permits the Court to dismiss an application in the absence of an applicant if the hearing is a date other than the first Court date.

I am satisfied that this is a date other than the first Court date as the first Court date was the appearance before the Registrar.
As the applicant has not attended I propose to dismiss the application pursuant to rule 13.03A(c) due to the absence of the applicant.
This is a case where I note that the applicant has been unsuccessful and the applicant has just not attended Court today with no notice to the respondent. The respondent has had to prepare to run the case and the respondent’s solicitor has had to appear ready to go straight into a defended hearing. To my mind this is a matter where costs follow the event and I am satisfied that it is appropriate that I should make an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 16 May 2005