Kwok v Minister for Immigration

[2006] FMCA 1077

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KWOK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1077

MIGRATION – Review of decision of Refugee Review Tribunal – practice and procedure – failure of applicant to attend first court date – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, rr.13.03A(c); 16.05

Applicant: HUNG THOMAS KWOK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG1513 of 2006

Judgment of: Emmett FM

Hearing date: 20 July 2006

Date of last submission: 20 July 2006

Delivered at: Sydney

Delivered on: 20 July 2006

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Mr D. Sim, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1513 of 2006

HUNG THOMAS KWOK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an interlocutory order that the applicant’s application filed in this Court on 24 May 2006 be dismissed pursuant to r.13.03A(c) of Federal Magistrates Court Rules 2001 which provides that if a party to a proceeding is absent from a hearing, including a first court date, the Court may, if the party is absent is an applicant, dismiss the application.

2. I note that the application was set down for a first court date at 9.30am on 20 July 2006 at John Maddison Tower.  The time is now 10.50am.  The applicant has been called on four occasions between 9.30am and now.  I note that the applicant has also filed an affidavit sworn on 24 May 2006 and filed on 24 May 2006, annexing a copy of the Migration Review Tribunal (“the Tribunal”) decision record, dated 21 April 2006. I note that the applicant failed to attend the hearing before the Tribunal.

3. Without any further consideration of the applicant’s application and without considering whether or not the applicant has an arguable case, I am satisfied that the applicant was aware of today’s Court hearing and for whatever reason chose not to attend. Accordingly, the application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.

ORDERS DELIVERED

1. I direct the first respondent to notify the applicant at the applicant’s address for service of the orders made today, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 and that the first respondent notify the applicant forthwith.

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

Deputy Associate:  S. Tsang

Date:  28 July 2006