Nadzan v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1150

FEDERAL COURT OF AUSTRALIA

Nadzan v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1150

MIGRATION – application for review of decision of Migration Review Tribunal – non-appearance of the applicant at the hearing

Federal Court Rules Order 32 r 2(1)(c), Order 45 r 7

P SANMUGAVELL AL PALAMALA NADZAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 735 OF 2003

HELY J
7 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 735 OF 2003

BETWEEN:	P SANMUGAVELL AL PALAMALA NADZAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	7 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 735 OF 2003

BETWEEN:	P SANMUGAVELL AL PALAMALA NADZAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	7 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was fixed for hearing on 7 October 2003 at a directions hearing held on 7 August 2003.  The applicant was represented by a member of the firm of Ward Maxwell & Co.  When the matter was called on for hearing on 7 October 2003 the applicant did not appear.

2. Under cover of a letter dated 30 September 2003 faxed to the Registrar of the Federal Court, Ward Maxwell & Co sought to lodge a Notice of Ceasing to Act in relation to this matter.  By letter dated 2 October 2003 the Registry of the Court informed Ward Maxwell & Co that the notice did not comply with Order 45 rule 7 of the Federal Court Rules and that they would remain as the solicitor on the record until they withdrew in accordance with the Rules.  As at 7 October 2003 there was nothing on the file following that communication.

3. On 1 October 2003 the solicitors for the applicant served the Notice of Ceasing to Act upon the respondent’s solicitors.  The notice included a request that all future correspondence be forwarded to the applicant’s last known address, which was given as 28/2 Rosebank Court, Glebe, NSW 2037.  Under cover of a letter of 1 October 2003, which was sent by courier, the respondent’s solicitors wrote to the applicant at that address enclosing the respondent’s outline of submissions and requesting that that outline should be brought to Court on the hearing of the applicant’s case on 7 October 2003 in the Federal Court.

4. I am informed by Mr Smith that his instructions are that no response has been received to that letter.  In those circumstances, I am satisfied that the applicant is aware that his case has been listed for hearing this morning and if he chooses not to attend that is a matter for him.  The consequence is that I should accede to the Minister’s request that I make an order under Order 32 r 2(1)(c) dismissing the action and I propose to do so. 

5. There is one matter to which I should advert briefly; in accordance with the directions given on 7 August 2003 the respondent filed and served an outline of submissions prior to the hearing.  That outline referred to statements said to have been made by the Migration Review Tribunal (‘the MRT’) in its decision of 19 May 2003, which I could not find when examining that decision or at least a copy of it incorporated on pages 87 to 89 of the relevant documents.  I raised this matter with Mr Smith who handed me another version of the decision of 19 May 2003 which contains the references in the submissions.  It seems very odd that there are two documents, each bearing a certification that they are a true copy of the MRT statement of decision and reasons, when the documents are different. 

6. The only difference between the two documents is that it would seem that the version of the decision included in the relevant documents was prepared at an earlier point in time than the version of the decision which I was given by Mr Smith.  The difference between the two is that the second version of the decision refers to a request made on 6 May 2003 by the applicant’s then adviser for a postponement of the matter coupled with a statement of the MRT’s reasons for law refusing that postponement.  I propose to direct that the version of the decision which I was handed by Mr Smith be placed on the Court file.

7. I have considered whether any prejudice could accrue to the applicant from the inclusion of what appears to be an incorrect version of the MRT’s decision in the green book, but I have come to the conclusion that no such prejudice could accrue.  In my view, the decision which the MRT reached was inevitable as the applicant’s proposed employer had not been approved as a business sponsor and in the circumstances that approval was necessary if the applicant was to satisfy the visa conditions.

8. In those circumstances, I order that the application be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             21 October 2003

The applicant did not appear
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 October 2003
Date of Judgment:	7 October 2003