SZGOE v Minister for Immigration
[2005] FMCA 1510
•11 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOE v MINISTER FOR IMMIGRATION | [2005] FMCA 1510 |
| MIGRATION – Practice and procedure – application for judicial review of Refugee Review Tribunal decision – 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: | SZGOE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1591 of 2005 |
| Delivered on: | 11 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Mr A Carter |
| Solicitors for the Respondent: | Sparke Helmore |
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 18 October 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).
The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1591 of 2005
| SZGOE |
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 20 June 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
12 March 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 April 1997 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.
Background
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 “SZGOE”.
The applicant, who claims to be a citizen of Indonesia, arrived in Australia on 14 September 1996. On 11 November 1996 he 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.8-30) (“CB”). On 19 April 1997 the delegate refused to grant a protection visa (CB pp.31-39) and on
19 May 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.40-43).
The applicant was born in West Java, Indonesia and completed twelve years of education, mostly in Jakarta. From January until July 1986 he studied at an academy in Jakarta but did not complete his course in management. He has not worked in Indonesia. In a submission from his adviser accompanying his visa application, the applicant claimed that on 27 July 1996 he joined a protest in Jakarta organised by the PDI (Indonesian Democratic Party) in support of free speech. The applicant was arrested with six friends, taken to the police station and interrogated. He was released on condition that he report to the police twice weekly. The applicant reported to police but they spoke to him rudely and threatened that he would be punished further for his part in the demonstration. The applicant was terrified and arranged for his departure from Indonesia. He fears that if he returns he will be arrested and imprisoned because of his involvement in the PDI demonstration (CB p.58).
Reasons
The matter was listed for hearing in this Court at 10.15 a.m. but did not immediately proceed at that time because there was no appearance by the applicant. Neither the Court nor the respondent solicitor had received notification from the applicant indicating that he 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.
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. 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 for discretion whether or not the Court will set aside the orders.
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 he chooses, can apply to seek to have set aside.
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 18 October 2005 and the Court’s expectation that any application made by the applicants to set aside today’s orders to be made within twenty-one (21) days.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 13 October 2005
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