NBKA v Minister for Immigration

[2006] FMCA 441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBKA v MINISTER FOR IMMIGRATION [2006] FMCA 441

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of The People’s Republic of China claiming fear of persecution for reason of religion – where applicant did not attend court.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001 r.13.03A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: NBKA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 600 of 2005

Judgment of: Scarlett FM

Hearing date: 13 March 2006

Date of Last Submission: 13 March 2006

Delivered at: Sydney

Delivered on: 13 March 2006

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to Rule 13.03A for the non-appearance of the Applicant at Court.

2. The Applicant is to pay the Respondent Minister’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 600 of 2005

NBKA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The application commenced in the Federal Court but on

   
   

   1^st March 2005 that Court transferred the proceeding to this Court. 

   
   

   On 11^th March 2005 the applicant wrote to the Registry saying:

   After careful consideration I decided to withdraw my case NBKA v Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal, Federal Court proceedings NSD1911 of 2004 at Federal Court of Australia.

2. The Registry then forwarded to the applicant a form of notice of discontinuance, with a note saying

   Please complete notice of discontinuance if you wish to discontinue your case.

3. That correspondence, which was forwarded to him at an address in Chatswood was returned unclaimed.  I am informed by the solicitor for the first respondent Minister that a letter to the applicant was returned unclaimed and I also note that the letter from this Court to the applicant, forwarded to a post office box address, which was his authorised address on 2^nd March, was returned unclaimed on 9^th March with a handwritten note saying:

   Return to sender.  This application was withdrawn from the Court a long time ago.

4. It is quite clear that the applicant at least intended to discontinue this matter.  He appeared not to have been successful in that, but certainly the matter should be dismissed for non-appearance under the provisions of r. 13.03A and I propose to do that now.

5. Costs are sought in the sum of $3,500.00 and I note that the application has been prepared for hearing and that everything seems to have been done with the exception of briefing counsel and forwarding final submissions.  The amount of $3,500.00 which is sought seems to me to be reasonable and well within the scale.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  27 March 2006