Kim v Minister for Immigration

[2008] FMCA 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 684

MIGRATION – Migration Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear.

Federal Magistrates Court Rules2001 r.13.03A(c)

First Applicant: YOUNG CHAN KIM

Second Applicant: YOO NI GEA JANG

Third Applicant: MENSIK KIM

Fourth Applicant: HAYEON KIM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 893 of 2008

Judgment of: Emmett FM

Hearing date: 21 May 2008

Date of Last Submission: 21 May 2008

Delivered at: Sydney

Delivered on: 21 May 2008

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms M. Regidor, Sparke Helmore

ORDERS

1. That the proceeding before this Court commenced by way of application filed on 14 April 2008 is dismissed.

2. That the applicant pay the costs of the first respondent fixed in the amount of $1000 and I note that such sum is in accordance with the schedule of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 893 of 2008

YOUNG CHAN KIM

First Applicant

YOO NI GEA JANG

Second Applicant

MINSIK KIM

Third Applicant

HAYEON KIM

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 14 April 2008, be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 on the basis of the failure of the applicants to appear at today's directions hearing. 

2. I note that the time is now 2.38pm.  The applicants have been called on three occasions outside this Court.  There has been no appearance by any of the applicants or any person on their behalf. 

3. I note that the matter was stood over by me on 14 May 2008 when it was first listed for directions on the basis that there was no appearance by any of the applicants.  I do note that on that occasion a person who identified himself as a friend of the first-named applicant informed the Court that he had been asked to come to Court to seek an adjournment because the first-named applicant was ill.  This person was not given leave by me to appear for the applicants.  However, the Court adjourned the matter until today to give the applicants a further opportunity to attend a directions hearing. 

4. There has been no communication received either by this Court, my chambers or the first respondent from or on behalf of the applicants in relation to the alleged illness of the first-named applicant or in relation to any reason why there is no appearance by or on behalf of the applicants today.

5. Order 2 of the orders made by me on 14 May 2008 stated that if there was no appearance by the applicants on the next occasion, then the application may be dismissed without further notice pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001.

RECORDED:  NOT TRANSCRIBED

1. The first respondent tendered a letter, dated 14 May 2008, marked Exhibit 1R which purports to enclose a copy of the sealed Orders made by me on 14 May 2008 notifying the applicant that if there was no appearance at today's directions hearing, then the first respondent would seek to have the matter dismissed and the applicants pay the first respondent's legal costs. 

2. I note also that a copy of the Orders made on 14 May 2008 were sent by my chambers to the applicants at both the address for receiving mail and the home address identified by the applicants on the application filed on 14 April 2008. 

3. In the circumstances, I am satisfied that the applicants were aware of the orders made by me on 14 April 2008 and, for whatever reason, have chosen not to appear this afternoon.  

4. In the circumstances, I am satisfied that it is appropriate to make the orders sought by the first respondent and I order that the proceeding before this Court, commenced by way of application filed on 14 April 2008, is dismissed.

RECORDED:  NOT TRANSCRIBED

1. I direct the first respondent to notify the applicant forthwith of the orders made today together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  29 May 2008