Guo v Minister for Immigration
[2007] FMCA 257
•21 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 257 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether decision of Migration Review Tribunal affected by jurisdictional error –dismissed for non-appearance by applicant – whether applicant aware of hearing date. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| Applicant: | RONG BING GUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG3892 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 February 2007 |
| Date of last submission: | 21 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2007 |
REPRESENTATION
| No appearance by Applicant |
| Solicitor for the Respondent: | Mr I. Muthalib, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3829 of 2005
| RONG BING GUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 that the proceeding before this Court, commenced by way of application filed on 23 December 2005 seeking judicial review of a decision of the Migration Review Tribunal dated 14 November 2005, be dismissed by reason of the failure of the applicant to appear at today’s hearing.
The application to which I have referred was filed on behalf of the applicant by Carr Lawyers of Parramatta who attended a directions hearing before a Registrar of this Court on 2 February 2006, at which time the matter was set down for hearing today at 10.15am. On
6 February 2007, Carr Lawyers filed a Notice of Ceasing to Act and identified the applicant’s last known residential address.
I note that the Affidavit of Service annexing the Notice of Ceasing to Act also annexed a letter sent to the applicant by express post, dated
1 February 2006 from Carr Lawyers, confirming with the applicant the applicant's instructions to cease to act and serving upon the applicant notice of intention to withdraw from the proceeding. The letter also went on to advise the applicant that if the applicant did not appoint another lawyer or file the enclosed notice of address for service within seven days the applicant may not be served with documents in the proceeding. The letter also confirmed the applicant's instructions to file and serve the Notice of Address for Service on behalf of the applicant.
The first respondent tendered a letter, dated 8 February 2007, marked exhibit 1R, on Blake Dawson Waldron letterhead addressed to the applicant at the residential address identified by Carr Lawyers in the Notice of Ceasing to Act as the applicant's last known residential address, informing the applicant that his matter was listed for hearing today at 10.15am before me at the Court's address.
The letter also informed the applicant that, if the applicant did not appear at the hearing, the first respondent would ask the Court to dismiss the applicant and order the applicant to pay the Minister's costs. The letter provided the telephone number of Mr Muthalib at Blake Dawson Waldron if the applicant wished to discuss the matter. Mr Muthalib has confirmed to the Court his morning that there has been no communication received by or on behalf of the applicant in response to that letter. I note that there has been no contact made to my chambers by the applicant in respect of this morning's hearing.
In the circumstances, I am satisfied that the applicant was aware or ought to have been aware of this morning's hearing and for whatever reason has chosen not to attend. Accordingly, the order sought is appropriate.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 12 March 2007
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