MZUAS v Minister for Immigration
[2005] FMCA 94
•25 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZUAS v MINISTER FOR IMMIGRATION | [2005] FMCA 94 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal of protection visa – default of appearance of applicant – Federal Magistrates Court Rules 2001 (Cth) Rule 13.03A(c) – application dismissed – costs. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
| Applicant: | MZUAS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1237 of 2003 |
| Delivered on: | 25 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 January 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Dr S. Donoghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
Pursuant to rule 13.03A(c) of the Federal Magistrate Court Rules 2001 the application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1237 of 2003
| MZUAS |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant, who is a citizen of the People's Republic of China arrived in Australia on 19 March 2002. On 26 March 2002 he lodged an application for a protection visa which was refused by a delegate of the respondent on 17 June 2003.
On 15 July 2002 the applicant applied for review of the delegate's decision to the Refugee Review Tribunal. On 29 September 2003 the tribunal affirmed the delegate's decision, handing down its decision on 17 October 2003.
On 10 November 2003 the applicant lodged an application in this court pursuant to section 39B of the Judiciary Act 1903 (Cth). An amended application was subsequently filed by the applicant on 26 March 2004. That application was pursuant to section 39B of the Judiciary Act 1903 and section 475A of the Migration Act 1958 (Cth).
On 8 July 2004 contentions of fact and law were filed on the applicant's behalf. Contentions of fact and law were filed by the respondent on 14 September 2004.
Mr Fernandez appears today as a courtesy to the Court and has no instructions from the applicant.
On 21 April 2004 Registrar Efthim made orders which included the adjournment of this matter for hearing this day, 25 January 2005. On that day Registrar Efthim also ordered that costs be reserved.
Mr Fernandez has attempted to communicate with his client, but has had no communication with him despite his attempts in the last five to six months. He has this day no instructions and has been unable to communicate in any way with his client in that intervening period and since the period following the filing of the contentions on behalf of the applicant - approximately since that time.
The applicant was called this day. He fails to attend. He thus has failed to prosecute his application and pursuant to the Federal Magistrates Court Rules 2001 Rule 13.03A, Default of Appearance of a Party, subsection (c) the Court may dismiss the application. The applicant is absent this day at the hearing of his application, this being a final hearing.
Accordingly, and in the face of Mr Fernandez having no instructions from his client the Court orders that the application be dismissed. As a consequence of that dismissal costs will follow the event.
The respondent sought a fixed sum of $6,500. I am satisfied that that accords with the Schedule scale of fees as set out in the Federal Magistrates Court Rules 2001 and accordingly have ordered that the applicant pay the respondent's costs fixed in that sum.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 25 January 2005
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