M1 of 2004 v Minister for Immigration

[2005] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M1 of 2004 v MINISTER FOR IMMIGRATION [2005] FMCA 271

MIGRATION – Practice and Procedure – application for re-instatement –whether adequate explanation for non-appearance – whether arguable case – application refused.

Applicant: APPLICANT M1 of 2004

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 1353 of 2004

Delivered on: 1 March 2005

Delivered at: Melbourne

Hearing Date: 1 March 2005

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms S. Weavers

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for reinstatement filed 21 February 2005 be dismissed.

2. The Applicant shall pay the Respondent's costs fixed in the sum of $600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1353 of 2004

APPLICANT M1 of 2004

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the applicant, by an application filed on 21 February 2005, seeks to reinstate an application which this court had dismissed on 16 February 2005 pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001.  The application for reinstatement, though filed on 21 February 2005, was not served upon the respondent, though the respondent’s solicitor appears and does not oppose the application being heard and determined this day.

2. The applicant, in support of the application for reinstatement, relies upon an affidavit sworn by him on 21 February 2005.  Although requiring the assistance of an interpreter, who is present before the court this day, and despite requiring the assistance of an interpreter before the Refugee Review Tribunal (the RRT) the applicant has indicated that the affidavit, though not interpreted, was read to him by a friend so that he could understand the contents of it and he signed it accordingly.  I am prepared, in the circumstances, to permit the applicant to rely upon the affidavit in support of the application and do so noting that a copy of the affidavit and application were not served upon the respondent though the respondent, sensibly and appropriately in my view, has conceded that the matter should be permitted to proceed this day with the applicant relying on the affidavit.

3. The affidavit is very short.  It states the following:

   “My migration agent, Mr Nihaq Gunatilake told me I did not have to attend court on 16th Feb. 

   He was not in Australia on 16th Feb, having gone to Sri Lanka.

   
   

   I received a call from the court asking me to come to court.  I was not at home.  I got the message at about 12 pm.”

4. I read the reference to “12” to be “12 midday”.  It is clear in this matter that a notice of hearing had been forwarded to the parties in relation to these proceedings.  That notice of hearing was forwarded to the parties on or about 29 October 2004.  Both parties, by notice of listing dated in fact 29 October 2004, were advised that the matter would be listed for hearing…