Bainibure v Minister for Immigration
[2004] FMCA 446
•6 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAINIBURE & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 446 |
| MIGRATION – Application to review decision of Migration Review Tribunal – non-appearance of applicant. |
| Applicant: | VILIMONE BAINIBURE & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1065 of 2003 |
| Delivered on: | 6 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 July 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
That the applicants pay the respondent's costs set in the amount of $4,000.
That the respondent notify the applicants of the orders made today and of the effect of Rule 16.05 of the Federal Magistrates Court Rules by letter sent by pre-paid post within seven days of today's date.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ of 2004
| VILIMONE BAINIBURE & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for a review of a decision of the Migration Review Tribunal, (the Tribunal) dated 26 May 2003 affirming a decision of a delegate of the respondent that the visa applicants were not entitled to the grant of Cultural/Social/Temporary) Class TE visas. Mr Bainibure, the first applicant, was the primary visa applicant.
None of the applicants appeared at the time at which the matter was listed or when called. Nor did they appear by some 20 minutes later. Attempts to contact them were unsuccessful. They have not filed any written submissions. They were originally legally represented. However a notice of ceasing to act was filed on 11 May 2004, together with an affidavit from the former solicitor indicating that the notice had been sent by express post to the applicants’ last notified residential address confirming that the firm would cease to act on 4 May 2004 unless certain issues were resolved by that date and that no response had been received.
Tendered in court today for the respondent were two letters from the solicitors for the respondent to the first applicant. The first, dated
2 June 2004 was sent to the address provided by the applicants’ former solicitor. It confirms the date and time of the hearing and the need for the applicant to attend. It stated that if the applicant did not attend and failed to advise the court, the respondent would seek an order that the application be dismissed and costs. The letter confirmed that orders were made on 31 July 2003 that the applicants were to file and serve written submissions five working days prior to the hearing. The applicants did not file and serve written submissions as ordered. The respondent's solicitors wrote to the first applicant again on 1 July 2004 reconfirming the hearing date and time and enclosing a copy of the respondent's outline of submissions.
In these circumstances, I am satisfied that the applicants have been put on notice of the hearing today. There is no indication of any contact from them to the court indicating why none of them are present today. In these circumstances I consider it is appropriate, as sought by the respondent, that the matter be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules. To allow for the possibility that there is some unexplained legitimate reason for the applicants’ failure to attend today I will require the respondent to draw the applicants attention to Rule 16.05 of the Federal Magistrates Court Rules.
The respondent also seeks that the applicants pay the costs of these proceedings. In all the circumstances that is appropriate. Bearing in mind the nature of this and other similar matters, I consider that an appropriate amount for costs is the sum of $4,000.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 22 July 2004
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