Baluch v Minister for Immigration
[2007] FMCA 229
•16 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALUCH v MINISTER FOR IMMIGRATION | [2007] FMCA 229 |
| MIGRATION − No appearance by the applicant − where had the applicant attended the court may have allowed the application by consent on the grounds the notice sent to the applicant under s.20 Education for Overseas Students Act (2000) may have been defective. |
| Federal Magistrates Court Rules 2001 Part 13 Rule 13.03A(c) Education Services for Overseas Students Act (2000) s.20 |
| Applicant: | MUHAMMAD ASAD BALUCH |
| Respondent: | MINISTER FOR IMMIGRATION |
| File Number: | SYG3003 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 February 2007 |
| Date of Last Submission: | 16 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2007 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
Each party to pay its own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3003 of 2005
| MUHAMMAD ASAD BALUCH |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
In this matter, which was due for hearing today, the applicant was originally represented. However, on 23 January 2007 there was filed an affidavit and notice of ceasing to act which arose because the solicitors were unable to contact their client. It is not surprising they were unable to contact their client because, according to the affidavit of Nicola Johnson, sworn 31 January 2007, the applicant departed Australia on 25 September 2006.
The respondent has asked that I dismiss these proceedings pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to the non-attendance of the applicant today. I am prepared to do this, but I have been told by the respondent, as is entirely appropriate, that had the applicant been here the respondent would have consented to a remission of this matter to the Migration Review Tribunal due to the improper form of notice under s.20 of the Education Services for Overseas Students Act (2000) (“the Act”). I think that this matter should be recorded in my judgment in case the applicant should seek a further visa because it would be unfair to him if such a visa was refused on the grounds that he had not complied with conditions on a previous visa when that matter has not yet been finally determined.
In those circumstances it would also be unfair for me to make an order that the applicant pay the respondent’s costs, even though he has not attended today. By the same token, I do not think it would be appropriate to make an order that the respondent pay the costs of the applicant whilst he employed a solicitor because there is no evidence that would indicate a response making the point upon which the concession was obtained was filed.
The orders I will make are therefore:
(1) proceedings dismissed pursuant to Part 13 Rule 13.03A(c);
(2) each party to pay its own costs.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
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