SZGJS & Anor v Minister for Immigration

[2006] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGJS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 392

MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) as the applicant did not appear.

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

First Applicant: SZGJS

Second Applicant: SZGJT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1347 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 20 March 2006

Delivered at: Sydney

Delivered on: 20 March 2006

REPRESENTATION

Applicants: No appearance by or on behalf of the applicants

Advocate for the Respondents: Ms C Gray

Solicitors for the Respondents: Sparke Helmore Lawyers

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 applicants to appear.

3. The respondents by 27 March 2006 are to provide the applicants with written notice of today’s orders and to inform the applicants of the applicants’ rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1347 of 2005

SZGJS

First Applicant

And

SZGJT

Second 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 25 May 2005 for judicial review of the Refugee Review Tribunal (“the Tribunal”) decision, made on 11 April 2005 and handed down on 5 May 2005. It affirmed the decision of the delegate of the first respondent (“the delegate”) made on 29 November 2004, refusing to grant the applicants protection visas. The applicants seek relief against the decision of the Tribunal.

2. The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been granted the pseudonyms “SZGJS” (First Applicant) and “SZGJT” (Second Applicant).

3. The respondents tendered and applied for the affidavit of Ms Catherine Jane Gray, sworn on 16 March 2006 (“affidavit of Ms Gray”) to be admitted into evidence.

4. The applicants have not sought to join the Tribunal as a party, however given that 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 applicants, SZGJS (husband) and SZGJT (wife), claim to be citizens of India, arriving in Australia on 25 July 2004.  On

   
   

   6 September 2004, they lodged an application for a Protection (Class XA) Visa with the Department under the Act. On 29 November 2004, a delegate of the Minister refused to grant a protection visa and on

   
   

   22 December 2004, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 67).

2. The applicant husband made specific claims under the Refugee Convention and his wife relied on her membership of his family. 

   
   

   At the time of the visa application, the applicant husband was 74 years of age.  He claimed to have been born in India, of Tamil ethnicity and of the Hindu faith.  The applicant husband made a series of claims that he was harassed and tortured by thugs associated with the Sinhalese in his area.  He claims that he spent most of his life in Sri Lanka, but returned to India, to the State of Tamil Nadu, in 1984.  The substantial part of his claim relates to claims against the Liberation Tigers of Tamil Eelam (“LTTE”) (CB 65-67).

Reasons

1. The matter was listed for hearing in before me at 2.15pm today but the applicants did not appear.  Ms Gray, appearing for the first and second respondents, referred to her affidavit of 16 March 2006, which contains details of the various stages as it progressed to final hearing.  Significantly, Ms Gray referred to a telephone message received from a person identifying herself as the applicant’s daughter, who indicated that the applicants had departed Australia to return to their country of origin.  Her affidavit also provides information in respect of enquiries carried out to confirm that the applicants had indeed departed Australia.   Copies of the Department’s movement records in relation to the applicants were obtained.  Those records are attached to the affidavit as annexures.  The affidavit also records correspondence sent to the applicants’ last known address, requesting them to contact the respondent’s solicitors concerning the future carriage of these proceedings.  That correspondence is also attached to the affidavit as an annexure.

2. In the circumstances, it seems appropriate that in the absence of the applicants, 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 applicants do not lose any substantive rights by this dismissal. They are entitled to apply to the Court to vary or set aside the orders if they wish. It is then a matter of discretion whether or not the Court will do so.

3. The respondents were ordered by 27 March 2006 to give written notice to the applicants of today’s orders, pursuant to r.16.05(2)(a) of the Federal Magistrates Court Rules 2001.

4. I have been requested by Ms Gray to make an order for costs. 

   
   

   I therefore order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application.  That order forms part of the orders that the applicants, if they choose, 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:  3 April 2006