SZGDQ v Minister for Immigration
[2005] FMCA 1837
•9 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1837 |
| MIGRATION – Practice and Procedure – application for judicial 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) where the applicant did not appear. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
| Applicant: | SZGDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1055 of 2005 |
| Delivered on: | 9 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 December 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Mr A Cox |
| Solicitors for the Respondent: | Phillips Fox |
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 16 December 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 first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1055 of 2005
| SZGDQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an interlocutory application brought by the respondent seeking an order dismissing the application filed on 27 April 2005 on the grounds that pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) the proceedings are an abuse of process.
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 27 April 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 March 2005 and handed down on 5 April 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on 16 December 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.
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 “SZGDQ”.
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 20 September 2004. On 24 September 2004 she 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.1-36) (“CB”). On 16 December 2004 the delegate refused to grant a protection visa (CB pp.43-47) and on 17 January 2005 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.48-51).
The applicant was born in August 1965 and lived in Shanghai throughout her life. She stated she had been dismissed from her job as a process worker in 1994 because she and other workers had been meeting at her house to discuss conditions at the factory and political issues. The applicant is divorced and has a son, born in 1989 who resides in China. She claimed that in 1998 she became an adherent of Falun Gong and when the practice of Falun Gong was banned by the Chinese government in 1999 she practised Falun Gong secretly. In June 2004 the applicant claimed that when she was doing Falun Gong exercises at home with other practitioners the police came and detained them all. She claimed she was beaten and tortured and released five days later but remained under supervision by the police and had to report to them whenever required. With the help of a friend, the applicant stated she obtained a visa and came to Australia. She stated she could not return to China because she would be imprisoned (CB p.67).
Reasons
The applicant appeared before Registrar McIllhatton on 11 May 2005 at a first Court date hearing and consented to Short Minutes of Order setting out a timetable for the future administration of the applicant’s matter. On 25 August 2005 the respondent solicitors requested the matter be listed for an interlocutory hearing seeking the matter be dismissed.
The matter was listed for hearing on 6 September 2005 but on that date there was no appearance by the applicant so I re-listed the matter on
4 October 2005. The applicant appeared at the scheduled hearing on
4 October 2005 but clearly had made no preparation in anticipation of the hearing on that date. The applicant had filed an amended application but she did not appear to have any real understanding of its contents or the purpose for its preparation and filing. I was not satisfied that the applicant could proceed on that date and I adjourned the matter until 9 December 2005 to provide the applicant with time to prepare for the interlocutory hearing.
The matter was listed for hearing in this Court at 2.15 p.m. however, the matter did not immediately proceed at the time because there was no appearance by the applicant. Neither the Court nor the respondent solicitors had received any communication from the applicant indicating whether she intended to appear before the Court at the scheduled hearing. Attempts were made to contact the applicant by telephone, but a recorded message indicated the applicant was unavailable. The matter was called before me at 2.35 p.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. 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 of discretion whether or not the Court will set aside the orders.
I have been requested by the Solicitor 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 she chooses, can apply to seek to have set aside. The respondent was ordered by 16 December 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 nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 December 2005
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