MA v Minister for Immigration

[2012] FMCA 885

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 885

MIGRATION – Application to review decision of Migration Review Tribunal – no appearance.

Federal Magistrates Court Rules, rr.13.03C, 16.05

Applicant: SHANG MA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 321 of 2012

Judgment of: Barnes FM

Hearing date: 18 September 2012

Delivered at: Sydney

Delivered on: 18 September 2012

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Ms Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. There being no appearance for the applicant the application is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules.

2. The applicant pay the costs of the first respondent fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 321 of 2012

SHANG MA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal commenced by application filed on 14 February 2012. By orders made on 14 March 2012, the matter was listed for hearing today. At that time the applicant was legally represented and her solicitor attended the directions hearing. However the applicant was not present today at the time when the matter was listed for hearing. Nor is she present now, some 23 minutes later.

2. In these circumstances, the first respondent seeks that her application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules. It is relevant to note in this respect that on 30 August 2012, as attested to in an affidavit by Yuan Hao Hu sworn on 10 September 2012 and filed on that date, the applicant’s former solicitor served a notice of intention to withdraw as lawyer on the applicant at her last known address sent by post and to a specified email address for the applicant.

3. On 7 September 2012, the first respondent sent a copy of the first respondent’s submissions to the applicant by express post to the street address referred to in the notice of intention to withdraw as solicitor.  The letter also confirmed the time, date and place of the hearing and advised the applicant that if she did not attend the hearing the respondent would seek orders for dismissal and that the applicant pay the Minister’s legal costs.  A copy of the letter was sent to what was at that stage her solicitor’s email address.

4. On 10 September 2012 the applicant’s former solicitor filed a notice of withdrawal as lawyer, together with the supporting affidavit to which I have referred, confirming service of the notice of intention to withdraw and that there was no delivery failure message received in relation to the email.

5. There is no evidence before the Court to suggest that the address at which the applicant was notified was not her correct residential address. In these circumstances, and where the applicant was legally represented at the time of the directions hearing, there is nothing to suggest that she is not aware of the time, date and place of the hearing. In that respect, I note also that the notice of intention to withdraw as lawyer dated 30 August 2012 reminded the applicant of the time, date and place of the hearing.

6. In those circumstances, I consider that the applicant can be regarded as being on notice of the time, date and place of the hearing and that the application should be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules in her absence. If it emerges subsequently that the applicant is able to establish that she was not in fact on notice of the time, date and place of the hearing, or there is a satisfactory explanation for her failure to appear, then she may be able to rely on r.16.05 of the Federal Magistrates Court Rules.  However on the evidence before the Court I consider that it is appropriate to dismiss the application for non-appearance. The applicant should pay the costs of the first respondent. In the particular circumstances of this case, having regard to the nature and complexity of the matter it is appropriate that the costs be in accordance with the Schedule to the Federal Magistrates Court Rules and fixed in the amount of $6,471.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  21 September 2012