MZXQQ v Minister for Immigration
[2007] FMCA 2151
•11 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXQQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2151 |
| MIGRATION – Refugee Review Tribunal – reinstatement application – dismissed for non-appearance. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| First Applicant: | MZXQQ |
| Second Applicant: | MZXQR |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 651 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 11 December 2007 |
| Date of last submission: | 11 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2007 |
REPRESENTATION
| Counsel for the Applicants: | No appearance |
| Advocate for the First Respondent: | Mr Carroll |
| Solicitor for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for reinstatement filed on 21 November 2007 is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The applicants pay the first respondent’s costs of the application fixed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 651 of 2007
| MZXQQ |
First Applicant
| MZXQR |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter, the applicants seek the reinstatement of a proceeding that was dismissed for non‑appearance on 15 October 2007. In support of their application for reinstatement the first applicant has sworn an affidavit on 21 November 2007 saying:
We are unemployed and we are facing some financial hardship, and also we couldn't get any legal advice. We also were waiting for some supporting documents to provide to the Federal Magistrates' Court but we haven't received those documents yet.
The application in itself simply asked for the reinstatement of the application. The matter was listed for hearing at 2.15pm today. That listing date was noted on the application itself which I assume was returned to the applicants at the time the document was filed. I take it that the applicants were well aware of the listing of the matter today at 2.15pm. The matter was called at approximately 2.35pm and the applicants were called in their actual names. There was no response to the call.
I have examined the reasons of the tribunal and I am unable to detect any error in them. The test for reinstating a matter includes an assessment of the merits. Other factors are a reasonable explanation for non‑appearance, prejudice to the other party and the effect of any delay in making application for reinstatement. I am not aware of any prejudice to the respondent in this matter. The delay is of about five weeks, which is not great. There is no explanation offered for the non‑appearance on 15 October 2007 and there is nothing before the court to explain the non‑appearance of the applicants today.
In the circumstances, I consider that the appropriate order is that the application for reinstatement be dismissed for non-appearance pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.
Application has been made for $500 costs. I have examined the scale. It provides for much greater amount by way of costs. In the circumstances, I consider that it is appropriate to order the applicants to pay the first respondent’s costs fixed in the sum of $500.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Riley FM
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