Lee v Minister for Immigration and Citizenship

[2007] FCA 354

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration and Citizenship [2007] FCA 354

HEA RAN LEE, JIN KYUM KIM AND JANG KYUM KIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 2015 OF 2006

LINDGREN J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2015 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HEA RAN LEE
First Applicant

JIN KYUM KIM
Second Applicant

JANG KYUM KIM
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

6 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.The application be dismissed.

3.Hea Ran Lee, the first-named applicant, pay the first respondent’s costs of the application.

4.The costs specified in the immediately preceding order be fixed in a sum of $600.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2015 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

`

BETWEEN:

HEA RAN LEE
First Applicant

JIN KYUM KIM
Second Applicant

JANG KYUM KIM
Third Applicant

`AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants are a mother and her two children.  They apply for leave to appeal from a judgment of the Federal Magistrates Court of Australia given on 6 September 2006 ([2006 FMCA 1395).  They lodged their application for leave to appeal on 16 October 2006, well outside the 21-day period within which they could have appealed to this court as of right. 

2. Upon the matter being called on this morning, the applicants did not appear.  They also did not appear before the Federal Magistrates Court when their application for review of a decision of the Migration Review Tribunal was fixed for final hearing. The Tribunal's decision, given on 17 October 2005, affirmed a decision of a delegate of the first respondent finding that the applicants were not entitled to the grant of Transitional (Temporary) (Class UA) visas.

3. The applicants applied to the Federal Magistrate under r 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to set aside the order of a dismissal that he had made on 6 June 2006 under r 13.03A(c) of those rules on the ground of the absence of the applicants from the hearing. The Federal Magistrate dismissed the application to set aside the orders of 6 June 2006. He was not satisfied that a satisfactory explanation had been given for the applicants non-appearance on that date. As well, the Federal Magistrate considered that the application for review of the Tribunal’s decision was without merit. Accordingly, he said that even if a satisfactory explanation for the applicants’ absence from the hearing had been shown, he would not have been persuaded to set aside his dismissal of their application for review.

4. In the present proceeding the Court wrote to Hea Ran Lee, the mother, at the address that she had given in the application for an extension of time by which this proceeding was commenced on 12 January 2007, advising her that her application was fixed for hearing today.

5. On 30 January 2007, Clayton Utz, the solicitors for the respondents (the second respondent filed a submitting appearance) wrote to the applicant confirming that her application was fixed for hearing today at 9.30 am before me, and that if she did not attend, the solicitors were instructed to apply to have her application dismissed.

6. On 2 March 2007, Clayton Utz again wrote to Ms Lee, enclosing a copy of their submissions and noting that her application was fixed for hearing today at 9.30 am and again advising that if she did not appear, they were instructed to seek to have the application dismissed.

7. It is clear that the applicants are aware that their application was fixed for hearing this morning.  It is now 9.55 am and they have not appeared.

8. I think it appropriate to dismiss the application under O 35A r 3(1)(a) of the Federal Court Rules 1979 (Cth), on the basis that the applicants are in default because they have failed to prosecute their application with due diligence; see O 35A r 2(1)(f) of those Rules. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        14 March 2007

The Applicant did not appear.
Solicitor for the First Respondent:	Ms S Zarucki of Clayton Utz
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007