Jomon v Minister for Immigration
[2008] FMCA 937
•26 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOMON & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 937 |
| MIGRATION – Non attendance – where applicant has sought adjournment – where applicant has a favourable decision from another Tribunal. |
| Migration Act 1958, s.109 Migration Regulations 1994 Federal Magistrates Court Rules 2001 |
| Applicants: | SUNI JOMON, JOSEPH JOMON THADATHIL, PRINCE JOMON JOSEPH, EMMANUEL JOMON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3199 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 June 2008 |
| Date of Last Submission: | 26 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2008 |
REPRESENTATION
| For the Applicants: | No appearance |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The Applicant (Suni Jomon) to pay the First Respondent's costs assessed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3199 of 2007
| SUNI JOMON, JOSEPH JOMON THADATHIL, PRINCE JOMON JOSEPH, EMMANUEL JOMON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The matter which is before me today is an application for the review of a decision of the Migration Review Tribunal that was handed down on 17 September 2007. The decision affirmed a decision of a delegate of the Minister to exercise the delegate's discretion to cancel, pursuant to s.109 of the Migration Act 1958 (the “Act”), a UC-457 long stay visitor (temporary) visa that had been obtained by the applicant apparently on the basis of certain incorrect information.
The applicant is a nurse presently working at Bankstown Hospital where she appears to be well regarded.
The application was lodged with this court on 15 October 2007 and there was a callover on 1 November when the matter was set down for hearing on 15 May 2008. That date had to be vacated by the court and was refixed for today.
In the meantime the applicant had applied for another visa, a DV-labour agreement (residence) class BV. That visa had been declined by the delegate. On 14 February 2008 the Migration Review Tribunal signed its decision remitting the application for reconsideration with a direction that “the applicant meets the following criteria for a sub-class 844 (Labour Agreement) visa, Cl. 855.213(2)(b) of sch. 2 to the Migration Regulations1994.” The decision was handed down on 7 March 2008.
I am told by Mr Markus, who appears on behalf of the Minister, that as of today's date there is no confirmation that this visa has been issued. So, at the present time, it would appear that the applicant is only in Australia by virtue of a bridging visa.
Over the last few days the court and the Minister's solicitors have received correspondence from the applicant requesting, on the grounds of a medical condition, an adjournment of this matter until October. Although the applicant is a nurse, and would therefore understand the importance of providing some form of medical confirmation of her condition and having been told by the solicitors for the Minister, and by my Associate, that this would be of immense help, nothing has been provided.
The Minister seeks that I should dismiss the application on the basis of the applicant's non-attendance today and order her to pay costs. I am prepared to accede to this request because the latest indication from the respondent's solicitors is that the applicant is still working although she says she is not fit enough to come to court. I would not necessarily have expected her to argue her case today if she had arrived. In fact, what I would have done would be to try and resolve the problem of her having what appears to be a favourable decision from the Migration Review Tribunal in respect of one visa and an unfavourable decision in respect of another. When I say resolve, of course it is not within my power to actually resolve the issue, merely to try and see whether or not the parties can come to some form of understanding.
However, as the applicant has not attended I propose to make an order dismissing the application, noting also that having read the green book carefully I would find it difficult to accept an argument that the Tribunal committed jurisdictional error when it exercised its own discretion in respect of the decision to cancel the visa.
It seems to me that it would be in the best interests of the applicant if she could utilise the services of a competent migration agent to negotiate with the Department in relation to the favourable decision that I have referred to and thus regularise her residence in Australia.
The application is dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001. I order that the Applicant (Suni Jomon) pay the First Respondent's costs which I assess in the sum of $2,500.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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