NBCV v Minister for Immigration

[2004] FMCA 1045

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCV v MINISTER FOR IMMIGRATION [2004] FMCA 1045

MIGRATION – Application for summary dismissal by respondent Minister – where applicant had failed file an amended application as ordered by the Court – where applicant failed to attend hearing – whether matter should be dismissed for non-appearance. 

Federal Magistrates Court Rules 2001

Applicant: NBCV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1277 of 2004

Delivered on: 23 August 2004

Delivered at: Sydney

Hearing date: 23 August 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No appearance

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. The applicant is to pay the respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $1,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1277 of 2004

NBCV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 24 April 2003 and lodged an application for a protection (class XA) visa on 22 July 2003. On 24 July 2003 a delegate of the Minister for Immigration and Multicultural & Indigenous Affairs refused to grant a protection visa and the applicant applied for review of that decision on 18 August 2003. On 5 March 2004 the Refugee Review Tribunal upheld the decision of the delegate. On 15 March 2004 the applicant filed an application for judicial review of that decision in the Federal Court of Australia. On 20 April 2004 the proceedings were transferred to the Federal Magistrates Court by order of Beaumont J.

2. At the directions hearing before the Registrar on 19 April 2004 the applicant consented to orders requiring her to file and serve an amended and fully particularised application on or before 28 June 2004. The applicant was assisted by a Mandarin interpreter at the directions hearing.

3. The matter came before me on 23 August 2004 when it was listed in the non-compliance list.  As at that date no amended application had been filed. In this matter I noted the affidavit of service of the application upon the Applicant. I noted that the applicant was not in attendance at the time fixed for hearing. I noted that the applicant was called outside the Court and did not appear. The applicant had still not appeared when I concluded the matter at 11.28 am, nor did she appear at any point during the day whilst I was hearing other matters in the list.

4. In all the circumstances I exercised my discretion and dismissed the substantive application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 January 2005