SZHNK v Minister for Immigration

[2006] FMCA 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 945

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – citizen of China claiming well-founded fear of persecution for reason of religion – where Tribunal not satisfied because of the lack of evidence to support applicant’s claims – where applicant did not attend court.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
Federal Magistrates Court Rules 2001 r.13.03A

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

Applicant: SZHNK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3248 of 2005

Judgment of: Scarlett FM

Hearing date: 23 June 2006

Date of last submission: 23 June 2006

Delivered at: Sydney

Delivered on: 23 June 2006

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The Refugee Review Tribunal is joined as Second Respondent.

3. The Application is dismissed under Rule13.03A(c) due to the absence of the Applicant from the hearing.

4. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,500.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3248 of 2005

SZHNK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant the Applicant a protection visa. The decision was made on 13^th September and handed down on 4^th October 2005. 

2. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 20^th January 2005. On 18^th February 2005 he applied for Protection (Class XA) visa which was refused on 15^th March 2005.  The Applicant sought a review of that decision by the Refugee Review Tribunal. 

3. The Applicant lodged an application for review with the Refugee Review Tribunal on 26^th May 2005. The application gave no details of his claim for review and he did not lodge any other document with his application or subsequently.

4. The Tribunal wrote to the Applicant on 8^th August 2005. advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the Applicant to attend a hearing on Friday 2^nd September 2005. 

5. The Tribunal did not receive any reply to its letter and the Applicant did not attend the hearing on 2^nd September. The Tribunal noted in its decision that, as the Applicant did not appear at the hearing it decided to exercise its power under s.426A Migration Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.

6. The Applicant has not attended Court today. The Applicant did appear on 15^th May 2006 when the application was in the First Court Date lists. He was not legally represented and I listed the application for final hearing at 12 noon today 23^rd June 2006. 

7. The Applicant has not attended Court today. He was called at 12:12pm and again at 12:23pm. No reply. There was no reply to the call. My associate has made a check of the facts and other methods of communication and no message or medical certificate has been received indicating that the Applicant is ill or injured or in some way hindered, delayed or prevented from attending the Court today.  I note that the solicitor for the First Respondent Minister has not received any message from or on behalf of the Applicant.

8. I note that the First Respondent wrote to the applicant on 16^th June 2006 enclosing by way of service a copy of the Respondent's submissions which were filed on that day. The letter confirmed that the matter was listed for hearing on 23^rd June 2006 12:00pm before me in the John Madison Tower, 88 Goulburn Street, Sydney. I would comment that the place of the hearing is exactly the same Court as the Court attended by the applicant on 15^th May 2006.

9. As there is no appearance by the Applicant and no explanation for his absence, I am satisfied the matter should not remain in the list any further. The solicitor for the First Respondent Minister asks that the application be dismissed with costs and I propose to accede to those applications.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  30 June 2006