Hope v Minister for Immigration
[2006] FMCA 1771
•22 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1771 |
| MIGRATION – Review of decision by Migration Review Tribunal – no appearance by applicant at hearing – Department movement records indicate that applicant has departed Australia – whether proceeding should be dismissed pursuant to r.13.03A(c) of Federal Magistrates Court Rules 2001. |
| Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | ROJER SAMIRBHAI HOPE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG2303 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 November 2006 |
| Date of last submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Mr O. Young, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2303 of 2005
| ROJER SAMIRBHAI HOPE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 that the applicant's proceeding before this Court, filed on 22 August 2005, be dismissed on the ground that the applicant is absent from the hearing.
The matter was set down for final hearing on 20 February 2007 before me, pursuant to directions made by Registrar McIllhatton on
26 October 2005.
On 17 October 2005, the Court wrote to each of the parties and, in particular, to the applicant at his address for service as identified on his application, being the only document filed in this Court by or on his behalf, informing the parties that the matter had been re-listed for hearing today at 11am.
The first respondent reads the affidavit of Ben Cramer, sworn 22 November 2006, in support of the application for dismissal. I note that annexed to that affidavit is a letter dated 30 October 2006, sent to the applicant at his identified address for service, also informing him of today's hearing. ‘Exhibit 1R,’ tendered by the first respondent, is a copy of that letter with the envelope marked "Return to Sender". I note that the correspondence from the Court addressed to the applicant, at the applicant's address for service as identified on his application filed 22 August 2005, was also returned, marked "Return to Sender".
The affidavit also annexes a copy of a movement check printed from data retained by the Department in respect of the applicant, indicating that he arrived in Australia on 18 February 2002 and departed on
26 April 2006. That movement check was current as at 22 November 2006.
In the circumstances, I am satisfied that, if the applicant was not aware of today's hearing, it is a matter solely within the control of the applicant. The correspondence from both the Court and the first respondent to the applicant is directed to the only address for the applicant on the Court file. Having regard to the evidence before me, it appears likely that the applicant has departed Australia. It is now 11.40am. The applicant has been called twice this morning and there has been no appearance.
In the circumstances, I am satisfied that the applicant's failure to appear is at the choice of the applicant and, accordingly, it is appropriate that the orders sought by the first respondent be made. The proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in an amount of $2415. I am satisfied that the costs sought are both in accordance with the Federal Magistrates Court schedule of costs and are otherwise reasonable in all the circumstances.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 27 November 2006
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