Kim v Minister for Home Affairs

[2018] FCCA 1964

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1964

Catchwords:
MIGRATION – No appearance by the applicant – whether an appropriate matter for Court to exercise powers under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 – application dismissed under r 13.03C(1)(c).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Migration Act 1958 (Cth), s. 476

First Applicant: HYUNG WAN KIM

Second Applicant:  HYUN KYUNG KIM

Third Applicant: JIYONG KIM

Fourth Applicant: JIHWAN KIM

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 540 of 2018

Judgment of: Judge Street

Hearing date: 20 June 2018

Date of Last Submission: 20 June 2018

Delivered at: Sydney

Delivered on: 20 June 2018

REPRESENTATION

No appearance by or on behalf of the applicants.

Solicitors for the Respondents: Mr D Baddeley
Mills Oakley

ORDERS

1. The application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 540 of 2018

HYUNG WAN KIM

First Applicant

HYUN KYUNG KIM

Second Applicant

JIYONG KIM

Third Applicant

JIHWAN KIM

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeal Tribunal (“the Tribunal”) made on 25 January 2018 holding that the Tribunal did not have jurisdiction in relation to an application to review a refusal made on 8 December 2017 to grant the applicant Temporary Business Entry (Class UC) (Subclass 457) visa. 

2. These proceedings commenced on 1 March 2018. On 22 March 2018, a Registrar of the Court made orders fixing the matter for hearing today. On the Court file, it is apparent that there was a notice of intention to withdraw of lawyer filed on 19 April 2018 and a notice of withdrawal of lawyer was filed on 3 May 2018 and again on 17 May 2018.

3. The matter has been called and the applicants have failed to appear. The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Rules 2001. The Court has endeavoured to contact the first applicant on the telephone number identified on the intention to withdraw as lawyer without success. It is now past 9:45am and the first applicant has not appeared in the Court. The Court is satisfied that the applicants were aware of the hearing date and that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

4. Accordingly, the application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

I certify that the preceding I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 September 2018