MZWFV v Minister for Immigration

[2004] FMCA 1105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWFV v MINISTER FOR IMMIGRATION [2004] FMCA 1105

MIGRATION – Procedure where no appearance by applicant – application to set aside under the Rules.

Federal Magistrates Court Rules 2001 r.16.05

Applicant: MZWFV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG453 of 2004

Judgment of: O’Dwyer FM

Hearing date: 18 November 2004

Delivered at: Melbourne

Delivered on: 18 November 2004

REPRESENTATION

Applicant: No appearance

Counsel for the Respondent: Mr Lewis

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application filed 30 April 2004 is dismissed.

2. The Applicant shall pay the costs of the Respondent fixed in the sum of $5,447.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG453 OF 2004

MZWFV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding comes before me on an application filed on

   
   

   30 April 2004 to review the decision of the Refugee Review Tribunal made on 8 April 2004.

2. The Applicant did not appear.

3. Counsel for the Respondent requested that I determine the matter and make appropriate findings.  I declined to do so for the reason set out below.  I proceeded with the hearing and dismissed the application on the basis the Applicant failed to appear to prosecute his claims.

4. In my view, the Applicant should, if he desired to challenge my order, make application under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001. That Rule provides:

   “(2)The Court may vary or set aside its judgment or order after it has been entered if:

   (a)     the order is made in the absence of a party;”

5. In light of that it is inappropriate that I make findings on the merit of an application where an Applicant has failed to appear as such findings would be irrelevant when determining an application under

   
   

   r.16.05(2)(a). No purpose is served by considering the merits of the Applicant’s claims in his absence and thereafter making findings.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: 

Date:  18 November 2004