CHI v Minister for Immigration

[2004] FMCA 654

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHI v MINISTER FOR IMMIGRATION [2004] FMCA 654

MIGRATION – Application for review of Migration Review Tribunal– refusal of a Student (Temporary) (Class TU) visa – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 where the applicant did not appear.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: WAI KING CHI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2607 of 2004

Delivered on: 29 September 2004

Delivered at: Sydney

Hearing date: 24 September 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Applicant: Nil

Solicitors for the Respondent: Phillips Fox

ORDERS

1. That the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2607 of 2004

WAI KING CHI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 21 July 2004 which affirmed the decision of the Minister’s delegate not to grant of a Student (Temporary) (Class TU) visa to the applicant. 

2. The matter was listed before me for directions on 10 September 2004 and there was no appearance by the applicant.  The matter was re-listed for 24 September 2004 and the solicitor for the respondent was to notify the applicant as to the date and time of the further listing.

3. The matter was listed for 10.30 a.m. this morning.  It did not immediately proceed at that time because the applicant was not in Court.  I stood the matter down until 11.05 a.m.. The applicant was called but was not in attendance.

4. In all the circumstances it seems to be appropriate that in the absence of an appearance I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal in default of appearance of a party.  The applicant does not lose any substantive rights by that dismissal.  He is entitled to apply to the Court to vary or set aside the order if he wishes to do so.  It is then a matter of discretion whether or not the Court will set aside the order.

5. I am also asked to make an order for costs, which I propose to do.  That of course, will form part of the orders which the applicant, if he chooses, can apply to seek to set aside. 

6. The respondent seeks an order for $500.00 costs and in the circumstances of this case I am satisfied that this is an appropriate amount. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:  Menna McMullan

Date:  29 September 2004