KUMAR v Minister for Immigration
[2011] FMCA 414
•31 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 414 |
| MIGRATION – Failure of the Applicant to appear at first court date – whether proceeding should be dismissed without further notice – whether applicant was aware of the first court date. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules2001 (Cth), rr.13.03C(1)(c); 16.05 |
| Applicant: | VIKAS KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 981 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 May 2011 |
| Date of Last Submission: | 31 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2011 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Ms Warner Knight (AGS) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 981 of 2011
| VIKAS KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the first respondent that the proceeding before this Court commenced by way of application filed on 16 May 2011 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) by reason of the failure of the applicant to appear at today's scheduled hearing.
The application filed on 16 May was accompanied by an affidavit sworn by the applicant on 16 May 2011 and filed on 16 May 2011. That affidavit, inter alia, annexed a copy of the transcript of the Migration Review Tribunal hearing in respect of which the applicant seeks judicial review. The application is signed by the applicant, and clearly has the first court date listed as Tuesday, 31 May 2011 at 10.00am on the front page of the application. The address of the Court is also provided in a stamp next to the first court date with the correct level of this building where this Court is situated.
I note the time is now 10.30. The matter has been called outside and there has been no appearance by the applicant.
There has been no communication received by this Court from the applicant seeking any adjournment of today's first court date or for any other reason.
However, the solicitor for the first respondent, Ms Warner-Knight, informed the Court that a person telephoned her this morning and identified himself as the applicant and said he was too ill to come to Court. Ms Warner-Knight told the Court that she had advised the person on the telephone that he should contact the Court if he was intending not to come. Ms Warner-Knight did not give her information to the Court as evidence. However, I accept that had Ms Warner-Knight been sworn in, that would have been the substance of her evidence.
In support of the application this morning, Ms Warner Knight tendered a letter, dated 23 May 2011, from the first respondent's solicitor to the applicant at the applicant's address for service. That letter is marked “Exhibit 1R”. That letter enclosed by way of service, copies of notices of appearances filed on behalf of each of the respondents, as well as a response. The letter also advised the applicant of the first court date at 10:00am this morning, and again provided the address of this Court.
The letter also informed the applicant that he is required to attend the first court date, and that if he did not attend, that the respondents may ask the Court to make orders dismissing his application and requiring him to pay the first respondent’s legal costs without further notice.
There is no evidence before this Court as to any reason why the applicant is not present in Court this morning.
Without more from the applicant, and in the absence of any evidence from the applicant or contact to this Court, I am satisfied that the applicant was aware of today's scheduled hearing, and for whatever reason has chosen not to attend. In the circumstances the first respondent's application is appropriate and accordingly the proceeding before this Court commenced by way of application filed on 16 May 2011 should be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 June 2011
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