MZWNG v Minister for Immigration
[2005] FMCA 225
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNG v MINISTER FOR IMMIGRATION | [2005] FMCA 225 |
| MIGRATION – PRACTICE AND PROCEDURE – Migration Act – application for reinstatement of application dismissed for non-appearance – whether adequate explanation for delay – whether arguable case – application refused. |
| Applicant: | MZWNG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 805 of 2004 |
| Delivered on: | 1 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms T Veschetti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application for reinstatement by letter dated 6 February 2005 be refused.
The applicant pay the respondent's costs fixed in the sum of $1300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 805 of 2004
| MZWNG |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the court made orders on 27 January 2005 that an application filed 22 June 2004 be dismissed pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001. A further order was made on that day that the applicant should pay the respondent's costs in the sum then fixed in the sum of $4000.
On the court file there appears a copy of a notice of appeal from that decision which was filed in the Federal Court on 16 February 2005. The notice of appeal suggests that the application has been listed before Federal Court for a directions hearing on 27 April 2005. It is noted that on the notice of appeal the applicant gives as an address for service an address in Griffith, New South Wales. Also on the court file is a copy of a letter purportedly written by the applicant addressed to “The Registrar, Federal Law Registry, Federal Magistrates Court” and dated 6 February 2005. In that letter the author states:
“I could not be present in court on 27 January 2005. I am the applicant in that matter. Please make arrangements to reinstate the above case, as I was not aware of that date. If I am out of time, I humbly request for an enlargement of time to make my request.”
That letter provides an address for the applicant in Preston, Victoria. Perhaps out of an abundance of caution the court has forwarded two notices of listing to the applicant. The first, a notice of listing dated 15 February 2005, indicating the matter had been listed today for mention, application for reinstatement. That letter was forwarded to the applicant at the Preston address. A second notice of listing dated 18 February 2005 similarly advising the applicant of the current listing was forwarded to the applicant care of the Griffith address. I presume that the second notice of listing was forwarded out of an abundance of caution, given that registry had received on 16 February 2005 the notice of appeal in the Federal Court.
There is no other material before the court which would explain the absence of the applicant in this matter today. I take the letter of 6 February 2005 to effectively be an application for reinstatement and to seek an extension of time within which to make the application, assuming an extension of time is required. In the circumstances it is probably not necessary for an extension of time to be sought, given the letter is dated 6 February 2005 and the decision made in this matter was made on 27 January 2005.
Given the non‑appearance of the applicant it is difficult for the court to make an appropriate assessment of the merits or otherwise of the application for reinstatement. However, it is appropriate in an application of this kind to make a decision on the available material, having regard to issues of whether or not there is indeed an arguable case and indeed whether or not there is any basis upon which the matter should be reinstated. It is difficult in the circumstances to make a detailed assessment, other than to note that it would appear in this matter that the decision made of the tribunal was a decision which does not appear on the face of it to disclose any jurisdictional error. That, combined with the unexplained non‑appearance again on this occasion, despite two notices of listing, encourages me to exercise my discretion to refuse the application for reinstatement.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 March 2005
0
0
0