Nath v Minister for Immigration
[2006] FMCA 273
•21 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 273 |
| MIGRATION – Practice and procedure – application for judiciary review of a Migration Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where the applicant did not appear. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a) Judiciary Act 1903 (Cth), s.39B |
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
| Applicants: | PRIYA POOJA NATH & PREETI POOJA SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG849 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | There was no appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Ms S A Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Migration Review Tribunal is joined as second respondent.
The application is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.
The respondent by 26 February 2006 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG849 of 2004
| PRIYA POOJA NATH & PREETI POOJA SHARMA |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 22 March 2004 for a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 25 February 2004, affirming the decision of the delegate of the first respondent (“the delegate”) made on 3 April 2001 who refused to grant the applicant an Extended Eligibility (Temporary) (Class TK) visas and General (Residence) (Class AS) visas. The applicants seek relief against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given that is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs at [43], [91], [153] and [180].
Background
In these proceedings, Priya Pooja Nath (“the applicant”), a citizen of Fiji, makes an application pursuant to s.39B of the Judiciary Act on behalf of herself and her daughter, Preeti Pooja Sharma, for a review of the Migration Review Tribunal decision declining to grant the applicants (Classes TK and AS) visas. On 3 April 2001, a delegate of the respondent refused to grant either classes of visa, citing the applicants’ non-attendance at departmental interview as a central reason why the delegate had been unable to verify the genuineness of the relationship. The applicant applied to the Tribunal on 18 April 2001 in relation to (Class TK) visa only. On 15 May 2003, the Tribunal invited the applicant to comment upon the information that indicated the applicant had been living with her former spouse at a property in Minto for certain periods and not with her sponsor (CB 120-121). In response, the applicant provided a statutory declaration and attached various documents (CB 122-139).
On 2 July 2003, the Tribunal wrote to the applicant and invited her to attend the hearing to give evidence (CB 140-141). The applicant and a nominated attendee attended the hearing of the Tribunal on 14 August 2003, during which they both gave evidence (the applicant with the assistance of an interpreter). On 25 February 2004, the Tribunal handed down the decision not to grant the applicant a (Subclass 820) visa (CB 148-157).
Reasons
On 17 February 2006, the applicants’ solicitor filed in the Court Registry a notice of ceasing to act, indicating that the applicant had withdrawn her instructions to the firm of Juris Australia Lawyers who previously acted for her. There was no appearance by a representative of Juris Australia seeking leave for the filing of that notice. I record that this withdrawal is not in accordance with the Court rules.
The matter was listed for hearing in this Court at 10.15am today, however, the matter did not immediately proceed at that time because there was no appearance by the applicant. The applicant was provided with a period of grace should she be experiencing some difficulty in reaching the Court at the scheduled hearing time. Neither the Court nor the respondent’s solicitors had received any notification from the applicant indicating whether she intended to appear before the Court at the scheduled hearing. The matter was called before me at 10.30am, but there was no appearance by or on behalf of the applicant. In the circumstances, it seems appropriate in the absence of the applicant that I should dismiss the application pursuant to Rule 13.03A(c) of the Magistrates Court Rules (Cth), which is dismissal for default of appearance of a party. The applicant does not lose any substantive rights by this dismissal. She is entitled to apply to the Court to vary or set aside the orders if she wishes to do so. It is then a matter of discretion whether or not the Court will set aside that order. The respondent’s solicitors were ordered by 28 February 2006 to give written notice to the applicant of today’s orders, the affect of Rule 16.05(2)(a) of the Federal Magistrates Court Rules and the Court’s expectation that any application made by the applicant to set aside those orders are to be made within twenty-one (21) days.
I have been requested by Counsel appearing for the first respondent to make a costs order. I therefore order the applicant pay the first respondent’s costs and disbursements of and incidental to the application. That order forms part of the orders that the applicant, if she chooses, can apply to have set aside.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 7 March 2006
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