Dey v Minister for Immigration

[2013] FMCA 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEY v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 113

MIGRATION – Application for review of decision of Migration Review Tribunal – no appearance at final hearing – application dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

Applicant: BIJOY KUMAR DEY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1686 of 2012

Judgment of: Nicholls FM

Hearing date: 11 February 2013

Date of Last Submission: 11 February 2013

Delivered at: Sydney

Delivered on: 11 February 2013

REPRESENTATION

The Applicant: No appearance

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 2 August 2012 is dismissed pursuant to Rule13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $4,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1686 of 2012

BIJOY KUMAR DEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 2 August 2012 by Bijoy Kumar Dey seeking review of the decision of the Migration Review Tribunal (“the Tribunal”). The application to the Court was made pursuant to s.476 of the Migration Act 1958 (Cth). The Tribunal decision, made on 30 June 2012, affirmed the decision of the Minister’s delegate to refuse the grant of a student visa to Mr Dey.

Relevant Background

1. The matter first came before the Court on 22 August 2012. The applicant appeared in person on that occasion and said that he did not require the assistance of any interpreter. A number of matters were attended to on that occasion. In particular, I made orders, by consent, for the conduct of this case, including that the matter be listed for a final hearing today at 2.15 pm here in the same court room.

Before the Court

1. When the matter was called today at 2.15pm there was no appearance by the applicant. In light of that, the Minister, through his representative, Ms N Johnson, has asked that I dismiss the application for want of appearance pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”).

2. I note for the record that it is now well past the scheduled time. Nothing has been heard from the applicant as to any difficulties in attending today. No request for an adjournment has been made and I accept what fell from the bar table from Ms Johnson, that there has been no contact with the Minister’s solicitors by the applicant, either today or earlier.

3. Further, I note that on the occasion of the first Court date, I made a number of orders, including that the applicant file and serve a number of documents. The applicant has done nothing in relation to those orders. Nothing further to the application and a supporting affidavit, as required by the Rules, has been put before the Court.

4. I also take note of the respondent’s Exhibit 1 (“RE1”), which is a letter dated 1 February 2013, addressed to the applicant at the address for service and, on the best evidence, sent by express post. The letter notified the applicant that the matter was listed for hearing today before me at the relevant time. It was made clear in the letter that the applicant was required to attend today and also, importantly, put the applicant on notice that, if he failed to attend, the first respondent would seek orders from the Court that the matter be dismissed and that he pay the Minister’s legal costs.

5. I am satisfied that, given that the applicant attended personally at the first Court date, he has had adequate and reasonable notice that the matter was set down for final hearing today. 

6. He has had some five months or so to focus on the final hearing. To say that there has been a complete lack of any impulsion on his part is stating the obvious. Nothing has been filed by the applicant. Nothing has been done by the applicant. No communication has been received from him. We now come to the final hearing. 

7. The applicant’s non-attendance remains unexplained and, in the absence of any satisfactory explanation and in the absence of any application for an adjournment, it is appropriate for the Minister’s application for summary dismissal to be granted. 

8. I will make the order sought by the Minister.

Costs

1. It is appropriate that an order for costs be made in the usual way. 

2. For whatever reason, the applicant has chosen not to appear today. It is quite clear that applicants who seek to initiate proceedings of this type may do so in circumstances where their understanding of the law and legal practice is limited. However the applicant has had ample opportunity to have sought assistance and advice in relation to his application. 

3. On the issue of costs in particular and whether the costs orders should be made, I note that the Minister squarely put the applicant on notice that his failure to attend could lead to this event.

4. It was always open to the applicant to have contacted the Minister’s solicitors. If it is the case that he did receive advice or, on reflection, felt that his case was not one that could succeed, then there was opportunity for him to approach the Minister’s solicitors. It appears that nothing in that regard has occurred. The order should be made and I will make the order.

5. As to the amount, this is a final hearing. The Minister has come prepared. He is represented by his lawyers and by a solicitor employed by his lawyers today. I note the amount sought, $4600, is, even for an unsuccessful student as the applicant appears to have been, a large amount.

6. However the test that I am required to apply today is whether the amount sought is reasonable in the circumstances. I have regard to the work done by the Minister’s solicitors, the preparation of the Court Book and while, as Court Books go, this is a slim little volume, nonetheless, that would only be of marginal impact on the cost. There has been a Response in this case, preparation of written submissions, the filing and serving of those documents, communication to the applicant (see RE1) and the attendance by a solicitor on at least two occasions. 

7. I am satisfied, in the circumstances before me, that the amount sought is a reasonable amount. I will therefore make that order as sought by the Minister.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  21 February 2013