BZAM of 2004 v Minister for Immigration
[2005] FMCA 414
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAM of 2004 & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 414 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – dismissal in default of appearance. |
Migration Act 1958 (Cth)
| Applicants: | BZAM of 2004, BZAN of 2004, BZAO of 2004 & BZAP of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG716 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 31 January 2005 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| Counsel for the Applicants: | No appearance for the applicants |
| Solicitor for the Respondent: | Mr Lo |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed on 10 December, 2004 be dismissed;
That the applicants pay the respondent's costs of and incidental to the application fixed in the sum of $3,500, such costs to be paid within thirty (30) days of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 716 of 2004
| BZAM of 2004, BZAN of 2004, BZAO of 2004 & BZAP of 2004 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This is an application for relief under section 39B of the Judiciary Act 1903 by four applicants against the Minister for Immigration, Multicultural and Indigenous Affairs. The matter was commenced most recently by an application filed on 10 December, 2004.
The application clearly sets out that the time and date for the first directions hearing of the application is 9.30am on 31 January, 2005. That is today. Between service of the application and today, the respondent has filed the notice of motion to have the proceedings summarily dismissed. The basis of that application is set out in the affidavit of Johnson Lo, filed 13 January, 2005. That application has not, at this stage, been served.
There is a further affidavit that I have given leave to read and file this morning sworn by Johnson Lo. Mr Lo is the solicitor in the office of the respondent’s solicitor’s who has the carriage of this matter. In that affidavit he sets out the attempts at service of the notice of motion and the communication that he has had with the main applicant in these proceedings.
Notwithstanding that contact, there has been no appearance this morning by any of the applicants in this matter. I record that each of the applicants was called outside the Court room, although called using the pseudonym assigned to them by the Registry. No answer was made to the call.
Accordingly, I am satisfied that pursuant to rule 10.01(2)(b), I should dismiss the proceedings for non-appearance. Accordingly, I will order that the application filed on 10 December 2004 be dismissed.
RECORDED : NOT TRANSCRIBED
There is an application for costs by the respondent. I am satisfied that the quantum of costs claimed is appropriate. There has been a notice of motion prepared but not yet served. Ordinarily, there might be some difficulty in securing an order for costs in respect of work performed but not agitated in the Court. But the circumstances of this case are such that the actions of the Minister seem to have been reasonable throughout and that the filing of the notice of motion for summary dismissal was an appropriate step. I am, therefore, prepared to allow the costs of that application.
There will be an order that the applicants pay the respondent's costs of and incidental to the application, including the notice of motion filed 13 January, 2004, fixed in the sum of $3,500. Such sum to be paid within 30 days of the date of this order.
RECORDED : NOT TRANSCRIBED
There is agitated by the respondent an application to restrain the applicants from commencing any further proceedings in this Court in respect of the same issues that have been determined in these proceedings and earlier proceedings. That application, as Mr Lo points out, can be made on the application of his client or on the Court's own motion. There was notice of that application contained within the notice of motion filed 13 January, 2005 but that notice of motion has not, it seems, been served at least to the satisfaction of the respondent, there being some difficulty about service deposed to in the affidavit of Mr Lo that I allowed him to read and file this morning.
Whether a Court should make the order sought on its own motion or not depends upon a range of factors, one of which is procedural fairness. Before a Court would embark upon making such an order of its own motion, it would necessarily provide notice of that to the respondent, if that is at all able to be done. This is a case where the applicants have instituted proceedings, but have not appeared on the first court date. There is no explanation as to why they have not appeared on the first court date, but be that as it may, it seems to me that to make an order such as that sought without proper notice to the applicant or applicants would not be to accord them proper procedural fairness. So in those circumstances, I decline to make the order. The orders will be as I have already pronounced.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S Haysom
Date: 1 April, 2005
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