Korkian Group Pty Ltd v Minister for Immigration

[2005] FMCA 787

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KORKIAN GROUP PTY LTD v MINISTER FOR IMMIGRATION [2005] FMCA 787

MIGRATION – Review of Migration Review Tribunal decision – refusal of a standard business sponsorship – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), reg.1.20D
Migration Act 1958 (Cth)

Applicant: KORKIAN GROUP PTY LTD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1906 of 2004

Delivered on: 8 June 2005

Delivered at: Sydney

Hearing date: 8 June 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1906 of 2004

KORKIAN GROUP PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 June 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 19 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 9 May 2003 to refuse to grant the applicant a standard business sponsorship.

Background

1. The review applicant claims to be a franchise business owner operating two restaurants in a Domino’s Pizza chain and has applied for approval as a standard business sponsor (seeking entitlement to make one nomination of business activities within a twelve month period). The Tribunal is dealing with a separate application for review in relation to the refusal of a visa applied for by the visa applicant, Mr Xi Yong Yu, his wife and son on the basis that the review applicant is proposing to employ the visa applicant as a manager. The delegate stated that the review applicant was not approved as a business sponsor on the basis that it made no claim against new or improved technology or business skills, and that it did not provide a satisfactory training record of or a demonstrated commitment towards training Australian citizens and permanent residents. To be approved as a business sponsor the review applicant must meet the criteria set out in Reg.1.20D of the Migration Regulations 1994 (Cth) made under the Migration Act 1958 (Cth) (Court Book pp.102-103) (“CB”).

Reasons

1. The matter was listed for final hearing at 10.15 a.m.  The matter did not immediately proceed at that time because there was no appearance by the applicant.  The Court had not received any notification from the applicant indicating whether he intended to appear before the Court for the scheduled hearing.  The matter was called before me at 10.35 a.m. and there was still no appearance by or on behalf of the applicant.  Counsel for the respondent tendered an affidavit of Benjamin Alexander Cramer, a Solicitor in the employ of Blake Dawson Waldron for the respondent, sworn on 8 June 2005 (“the affidavit of Mr Cramer”).

2. The affidavit of Mr Cramer recounted a conversation that Mr Cramer had with the applicant, Mr Kris Korkian, on the afternoon of 7 June 2005.  During that conversation words to the following effect were spoken:

   Mr Cramer:It is Ben Cramer speaking.  Can I speak with Kris Korkian?

   Mr Korkian:     Speaking.  My case is on for hearing tomorrow but I don’t think I want to go ahead.  I am no longer sponsoring Mr Xi Yong Yu and the nature of my business has changed.

   Mr Cramer:You can withdraw your case by filing a Notice of Discontinuance or by signing Consent Orders.  In either case, the Minister will seek an order for costs.

   Mr Korkian:     How much are the costs.

   Mr Cramer then indicated to him an approximate amount of the Minister’s actual costs at the time and indicated the Minister would be prepared to accept a lesser amount.

   Mr Korkian:     If I pay costs then I might as well proceed with my case.

   Mr Cramer:That is up to you but you should know that if you proceed with the case and are unsuccessful then you may be ordered to pay a greater amount.

   Mr Korkian:     OK.  I will think about it and let you know.

3. As there was no appearance by or on behalf of the applicant, it seemed appropriate that, in the absence of the applicant, I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which is dismissal for default of appearance of a party. The applicant does not lose any substantial right by the dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is then a matter of discretion whether the Court will set aside the orders.

4. I have been requested by Counsel appearing for the respondent to make orders for costs.  I therefore order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.  This order forms part of the orders which the applicant, if he chooses, can apply to seek to have set aside.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  8 June 2005