SZHFT v Minister for Immigration

[2006] FMCA 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 294

MIGRATION – Practice and procedure – application for judiciary review of a Refugee Review Tribunal decision – application dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) – applicant did not appear.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.91X, 424A, 483A

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)

Applicant: SZHFT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2772 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 2 March 2006

Delivered at: Sydney

Delivered on: 2 March 2006

REPRESENTATION

Applicant: There was no appearance by or on behalf of the applicant

Advocate for the Respondent: Ms S Zarucki

Solicitors for the Respondent: Clayton Utz

ORDERS

1. 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.

2. The respondent’s solicitor by 8 March 2006 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2772 of 2005

SZHFT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL 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 29 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 14 January 2003 and handed down on 6 February 2003. That decision affirmed the decision of the delegate of the first respondent (“the delegate”) made on 14 October 2002, refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.

2. 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 “SZHFT”. The applicant is a child born on 30 July 2002 to Bangladeshi parents who are also pursuing an application for protection visas. The Court file does not contain copy of any orders appointing a litigation guardian in these proceedings. In the absence of any appearance for or on behalf of the applicant, I declined to make that order and believe it will be appropriately addressed should an application be made to the Court to set aside the orders made today.

3. For the purposes of the respondent’s application, the respondent tendered and applied for the affidavits of Ms Svetlana Zarucki, the first of which was sworn on 31 October 2005 (“Affidavit of Ms Zarucki No. 1”) and the second sworn on 22 November 2005 (“Affidavit of Ms Zarucki No. 2”) to be admitted into evidence.

Background

1. The applicant, a baby with Bangladeshi citizenship, was born in Australia on 30 July 2002, while his Bangladeshi parents were pursuing an application for protection visas. His parents arrived in Australia on 3 December 1999 and lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs under the Act on 17 December 1999. On 25 October 2002, the Tribunal affirmed the Department’s decision to refuse to grant them protection visas. On 17 September 2002 the parents acting on the applicant baby’s behalf lodged an application for a protection visa. On 14 October 2002 the delegate of the Minister refused to grant a protection visa and on 7 November 2002 the parents acting on their baby’s behalf applied for review of that decision (Affidavit of Ms Zarucki No. 2, p.1).

Reasons

1. The matter was listed for an interlocutory hearing in this Court at 11.30am.  The matter did not immediately proceed at that time because there was no appearance by the applicant.  The matter was stood down for approximately 15 minutes to provide the applicant with a period of grace, should she have experienced difficulty in locating the Court.  Neither the Court, nor the respondent’s solicitor received notification from the applicant to indicate whether she intended to appear before the Court.  The matter was called again at 11.45am, but there was no appearance by or on behalf of the applicant.

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

3. The respondents solicitor was ordered to give written notice to the applicant of today’s orders by 8 March 2006: r.16.05(2)(a) of the Rules. It is the Court’s expectation that any application made by the applicant to set aside today’s orders is to be made within twenty-one (21) days.

4. I have been requested by counsel appearing for the respondents 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 she chooses, can apply to have set aside.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  8 March 2006