M222 v Minister for Immigration
[2004] FMCA 80
•19 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M222 v MINISTER FOR IMMIGRATION | [2004] FMCA 80 |
| MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of decision of Refugee Review Tribunal – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules where applicant did not appear. |
Federal Magistrates Court Rules 2001, Rule 13.03A(c)
| Applicants: | M222/2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 764 of 2003 |
| Delivered on: | 19 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 19 February 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
That the applicant pay the respondent's costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 764 of 2003
| M222/2002 |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) which affirmed the decision of the Minister's delegate not to grant a protection visa to the applicants.
The matter has been listed for hearing this day and there is no appearance by the applicant. The applicant was originally represented by solicitors and on 3 July 2003 his then solicitors filed a Notice of Ceasing to Act. They attached a letter written by the applicant to them telling them that he wanted to handle his case on his own and did not want them to act as his solicitor. His address appeared at the top of that letter and in the Notice of Ceasing to Act. The solicitors also indicated his address, which is the same address. A letter advising of the listing date was sent to the applicant at his address and in an abundance of caution to his solicitors as well.
The matter was listed for 10.15 this morning. It did not immediately proceed at that time because I was already dealing with another matter and as the applicant was not here the solicitors for the respondent telephoned him and were able to make contact with him. I am informed that he first told them that he thought his solicitor was going to attend. Subsequent to the phone call the solicitors for the respondent looked at their file and noted the letter to which I have referred where the applicant told his solicitors he did not want them to act for him. They telephoned him again and brought the contents of that letter to his attention. He apparently said that he would attend and needed about half an hour to get to court.
That conversation took place at about 10.20am. The matter was called on before me finally at about 10.40am and I was informed about matters to which I have referred. I then said I would stand the matter down for a further period until 11.00am but in fact I did not resume until 11.15am. The applicant has been called. He is not here.
In all the circumstances it seems to be appropriate that in the absence of an appearance I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal in default of appearance of a party. The applicant does not lose any substantive rights by that 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 or not the Court will set aside the order.
I am also asked to make an order for costs which I propose to do. That of course, will form part of the orders which the applicant, if he chooses, can apply to seek to set aside.
This matter was originally brought in the High Court and then was remitted to the Federal Court and subsequently to the Federal Magistrates Court. The respondent seeks an order for $6000 costs and in the circumstances of this case I am satisfied that is an appropriate amount.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 23 February 2004
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