SZHXZ v Minister for Immigration
[2006] FMCA 588
•4 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 588 |
| 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 – applicant a citizen of Poland who claimed a fear of persecution for reason of religion – where applicant came to Australia as a student and converted to the Mormon faith whilst in Australia – no claim of serious harm amounting to persecution. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.425, 426A, 474 Federal Magistrates Court Rules 2001, r.13.03A |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZHXZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3796 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 April 2006 |
| Date of Last Submission: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2006 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed pursuant to Rule 13.03A due to the
non-attendance by the Applicant at the hearing.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3796 of 2005
| SZHXZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 21st October and handed down on
15th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection (class XA) Visa to the applicant.
The applicant is a Polish citizen. She is 28 years and speaks fluent English. She arrived in Australia lawfully on 28th April 2002.
On 21st April 2005 she applied for a Protection Visa, which was refused on 18th July.
On 9th August 2005 the applicant applied for a review of the delegate’s decision by the Refugee Review Tribunal. The Tribunal wrote to her on 6th September 2005, informing her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal invited the applicant to attend a hearing on 6th October 2005 so that she might give oral evidence and present arguments in support of her claims.
The applicant forwarded a Response to Hearing application form to the Tribunal on 20th September 2005, indicating that she did not wish to come to a hearing, and she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear.
The Tribunal proceeded on that basis and made its decision on
21st October 2005. The Tribunal affirmed the decision of the delegate not to grant a Protection Visa to the applicant.
The applicant then filed an application for judicial review. The first Court date was 6th March 2006. The applicant appeared on that date in person. She indicated that she did not require the assistance of an interpreter and indeed she appeared before me and I was satisfied that she spoke fluent English. I gave leave to file an amended application and I note that the applicant has done so.
The application was listed for final hearing on Tuesday 4th April 2006, at 12 noon. That time has passed. The applicant was called at 12 noon and again at 12.18. She has not appeared on either occasion and still does not appear. I have made inquiries from my staff and I am satisfied that no telephone, email or fax message or any letter has been received by or on behalf of the applicant indicating that she has either been delayed in getting to Court or is unable to get to Court due to illness or injury or some other urgent personal reason. She has been called out in the waiting room and I understand that there are no persons in the waiting room on this level, as this Court is the only Court sitting on Level 7 today.
It appears quite clear that the applicant for whatever reason is not attending Court today. I have been asked by Ms Gray for the respondent Minister to dismiss the application under the provisions of r. 13.03A on the basis of the non-appearance by the applicant, and I propose to do so.
The application is dismissed pursuant to r. 13.03A of the Federal Magistrates Court Rules 2001 for non-appearance by the applicant at the hearing.
This is also a matter where I am asked to make an order for costs.
It seems to me appropriate that costs should follow the event.
The application was listed for hearing on a defended basis today.
I note the Court books have been prepared and written submissions have been filed. Ms Gray from the Minister’s solicitors has appeared at Court on time ready to conduct a defended hearing and I believe the costs should reflect that.
I propose to make an order that the applicant is to pay the first respondent’s costs. I am asked for the sum of $2,800.00 inclusive, which seems to me to be a very modest amount in the circumstances and one that I have no hesitation in allowing.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 24 April 2006
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