Dai v Minister for Immigration

[2007] FMCA 1566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1566

MIGRATION – Visa – Migration Review Tribunal – application for review of decision to cancel the applicant’s Subclass 573 Higher Education Sector visa – where the applicant did not attend Court – application dismissed under r.13.03A.

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

Applicant: RUI DAI

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent: MIGRATION REVIEW TRIBUANL

File number: SYG 1813 of 2007

Judgment of: Scarlett FM

Hearing date: 21 August 2007

Date of last submission: 21 August 2007

Delivered at: Sydney

Delivered on: 21 August 2007

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Warner Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, due to the non-attendance by the Applicant at the hearing.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1813 of 2007

RUI DAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal.  The application was filed on 8^th June 2007 with an affidavit in support. The application came before the Court on a First Court Date on Monday 2^nd July 2007. Orders were made by consent containing directions for hearing. 

2. There was a slight change to the time due to the fact that another matter which was to be heard this morning needed to be heard this afternoon, so the Court advised the Applicant by a letter dated 25^th July 2007 that the time, but not the date or the place, had been changed. That letter was dated 25^th July and posted that day. 

3. I am also informed by Ms Warner-Knight, for the First Respondent Minister, that the solicitors for the Minister wrote to the Applicant on 15^th August 2007 and in that letter they also advised him about the hearing including confirming the time, date and place. 

4. The Applicant has not attended Court.  He did not attend Court at 10:00 am when the matter was listed.  I stood the matter down in the list in order to allow time for the Applicant in case he was late or in some way hindered or delayed, or prevented from attending Court due to illness or injury or some other emergency.  No message has been received from the Applicant or anyone on the Applicant’s behalf giving any explanation for the Applicant’s non-attendance.  

5. I called the matter again at 10:30am. The Applicant was called three times outside the Court at 10:30am and still there was no appearance.  I am satisfied that the Applicant is now most unlikely to appear and I propose to accede to the application on behalf of the First Respondent Minister to dismiss the application for review under the provisions of Rule 13.03A due to the non-appearance by the Applicant at the hearing.

6. There is also an application for costs in the sum of $5,000.00. The solicitors for the Respondent Minister have quite clearly prepared the matter for hearing and they have complied with the directions for hearing and appear to me to be in all respects ready and able to defend this matter on a final hearing basis if the Applicant had turned up.  The amount sought is $5,000.00 which is within the scale proposed by the Rules.

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

Associate:  V. Lee

Date:  12 September 2007