SZGHR v Minister for Immigration

[2006] FMCA 536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 536

MIGRATION – PRACTICE & PROCEDURE – Application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the non-appearance of the applicant.

Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05(2)(a)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: SZGHR

First Respondent: MINISTER FOR IMMIGRAITON & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1249 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 4 April 2006

Delivered at: Sydney

Delivered on: 4 April 2006

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Advocate for the Respondents: Ms A Alex

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.

3. The respondents by 18 April 2006 are to provide the applicant with written notice of today’s orders and to inform the applicant of the applicant’s rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1249 of 2005

SZGHR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. 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”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 13 May 2005 for judicial review of a Refugee Review Tribunal (“the Tribunal”) decision. The Tribunal decision was made on 7 April 2005 and handed down on 27 April 2005. It affirmed a decision of the delegate of the first respondent made on 31 October 2000, refusing to grant the applicant a protection visa.

2. The applicant had previously sought review of the delegate’s decision by filing an application for review, also in this Court, on 15 October 2004. On 24 December 2004, the Court, by consent, set aside the Tribunal decision made on 16 May 2002, and remitted the matter to the Tribunal to be determined according to law.

3. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been granted the pseudonym “SZGHR”.

4. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The applicant, who is a citizen of India, arrived in Australia on 28 July 2000.  He applied for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs on 24 August 2000 (Court Book (“CB”) 34).

2. In support of his application for a protection visa, the applicant submitted a statutory declaration declared on 24 August 2000 (CB 25).  He declared that in India in mid-1994, he commenced work at a car factory and also joined a union.  He stated that he was arrested and sentenced to gaol for one month after he conducted a demonstration against the company administration.  A false murder case was also framed against him.  With help from the union, he recommenced work in the same factory after a month, but problems arose again and he participated in a hunger strike.  The statement then goes on to make detailed claims of an ongoing dispute between the applicant and the company administration (CB 25).

Reasons

1. The matter was listed for hearing before me at 10.15am today.  There was no appearance by the applicant.  The solicitor for the first respondent produced a Department “Movement Record” dated 15 March 2006, which was tendered as evidence.  This document indicates that the applicant departed Australia on 10 August 2005 and has not re-entered the country.  Neither the Court nor the first respondent’s solicitors received notification from the applicant indicating whether he intended to continue to pursue his claim.  There has been no notification of withdrawal by the applicant.

2. In the circumstances, it seems appropriate that in the absence of the applicant, I should dismiss the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which allows dismissal for default of appearance of a party. The applicant does not lose any substantive rights by this 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 order.

3. I have ordered the respondents to give written notice to the applicant by 18 April 2006 of today’s orders, under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001.

4. I have been requested by the solicitor appearing for the first respondent to make an order for costs.  I therefore order that the applicant pay the first 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 have set aside.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  18 April 2006