MANANDHAR v Minister for Immigration
[2005] FMCA 756
•26 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANANDHAR v MINISTER FOR IMMIGRATION | [2005] FMCA 756 |
| MIGRATION – Application to set aside order – where the applicant had failed to attend Tribunal – where conditions in the Migration Act did not pertain to the applicant at the time of the hearing – where the applicant did not respond to the Tribunal on matters relating to the application when requested. |
| Federal Magistrates Court Rules 2001 Migration Act 1958, s.359C |
| Applicant: | SADANA MANANDHAR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULUTRAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 524 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 May 2005 |
| Date of Last Submission: | 26 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Newman & Associates |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed
Applicant to pay the respondent's costs assessed in the sum of $350.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 524 of 2004
| SADANA MANANDHAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings are an application to set aside orders made by Registrar Hedge on 27 January 2005 dismissing the proceedings under Rule 13.03A(c) of the Federal Magistrates Court Rules as there was no appearance by the applicant at a directions hearing. I have on file an affidavit of Mr Muthalib dated 25 January 2005 which indicates that the applicant was informed no less than three times about the directions hearing by way of letter the last of which was 18 January 2005 only a few days before the day in question. The applicant has filed an affidavit in support of her application. But the affidavit is not sworn by her, it is sworn by a person claiming to be her migration agent. The affidavit then goes on to purport to give evidence about instructions given to a solicitor and the inadvertent missing of the hearing date by the applicant. This affidavit is clearly hearsay and I reject it.
Even if the affidavit was to be admitted inadvertence in itself is no real excuse for not attending court, particularly when the matter is so important. In any event, having considered the papers contained in the court book it seems to me clear that this is an application which is doomed to failure. The matter before the Migration Review Tribunal was an application to review a refusal to grant the applicant a temporary business entry (class UC) visa. One of the conditions for the grant of such a visa was that the activity in which the applicant proposes to be employed in Australia is the subject of an approved business nomination by the employer.
Another ground is that the employer is a pre-qualified business sponsor and a final ground of relevance is that the applicant is nominated in accordance with approved form 1068 in relation to the activity by the employer. These conditions must exist not only at the time the application is considered by the delegate but also when it is reviewed by way of complete re-hearing by the Tribunal. At the time the Tribunal considered the matter those conditions did not pertain to the applicant.
In case it may be considered that some unfairness occurred in what appears to be a rather lengthy delay between the time of the original decision and the time of the review in 2004 it should be noted that at [CB45] there is a copy of a letter from the Tribunal to the applicant on 27 November 2003 pointing out the problems that she suffers from not having an approval. The applicant was asked to consider these matters and to respond to the Tribunal but she did not do so. In the light of her failure to do so the Tribunal then proceeded to deal with the matter pursuant to section 359C of the Act and made a decision on the review without taking any further action to obtain her comments.
In all the circumstances I am satisfied that there is no good reason to grant this application and I dismiss it. I order that the applicant pay the respondent's costs which I assess in the sum of $350.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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