NUDD v Minister for Immigration
[2005] FMCA 1492
•3 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NUDD v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1492 |
| MIGRATION – Judicial review – Migration Review Tribunal – Partner temporary class UK visa and partner residence class BS visa – application hopeless – no particulars of jurisdictional error. PRACTICE AND PROCEDURE – First hearing date – no appearance by Applicant – directions made – preferable course to dismiss for non-appearance – evidence that Applicant departed country before first hearing date – Rules 13.03A and 13.10 Federal Magistrates Court Rules – undesirability of administrative decision vacating hearing date without notice – where notice of motion necessary after departure of Applicant. |
| Migration Regulations 1994 Federal Magistrates Court Rules 2001, Rule 13.03A |
| Applicant: | ANNE NUDD |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL &INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 772 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 3 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondents: | Ms E. Nance |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 29 June 2005 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondents' costs fixed in the sum of $3500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 772 of 2005
| ANNE NUDD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant seeks to set aside a decision of the Migration Review Tribunal which had handed down a decision on 30 May 2005, refusing the applicant's application for a partner temporary class UK visa and partner residence class BS visa. In making its decision, the MRT I understand had concluded that the applicant was not entitled to the visas on the basis that she was not able to satisfy subclass 820.211(2) of the Migration Regulations 1994 because she was not the spouse of an Australian citizen.
The respondent has filed an affidavit of Emily Jane Nance sworn 1 September 2005, which for present purposes I accept satisfactorily sets out the relevant chronology of events, and otherwise attaches to it the decision of the MRT. The application in this court was filed on 29 June 2005. On the face of it the application is hopelessly defective. It simply seeks orders that the decision from the "Migration Review Tribunal be set aside." No grounds are provided at all in support of the application.
An address at Oakmont Street, Rothwell, is given for the applicant, which is an address in the state of Queensland. The matter was first listed for hearing on 17 August 2005. Unfortunately on that date, when the matter came before a registrar of this court, orders were made that the directions hearing be adjourned to 14 September 2005 and a further order made that the respondent file and serve a notice of motion seeking summary dismissal and affidavit in support on or before 31 August 2005.
It appears from the Court file that when the matter came before the court on 17 August 2005 there was in fact no appearance for the applicant. In those circumstances it is my strong view that the preferred approach where an applicant does not appear at the first hearing is for the Registrar and/or a Federal Magistrate to then exercise the powers which the court undoubtedly has pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 and to dismiss the application in circumstances where the party making the application does not attend.
Unfortunately in the present case, instead of simply dismissing the application for non-appearance, the Registrar then presumably at the request of the respondent - permitted the respondent time to file and serve a notice of motion seeking summary dismissal. Indeed it is noted from the court file that it would appear that a sealed copy of the orders made by the Court on 17 August 2005 were not forwarded to the applicant.
Nevertheless, I am able to find as a matter of fact as a result of the appropriate conduct by the respondent's solicitors, who by letter dated 22 August 2005 addressed to the address for service in the applicant's application forwarded a sealed copy of the orders made by the court on 17 August 2005. I note further from the correspondence, which I direct shall remain on the court file, that the following paragraph appears:
“2.You will note that the Orders provide for a Motion for Summary Dismissal to be filed by the First Respondent. This means that the First Respondent will seek to have your Application dismissed at an early stage, on the basis that the Application for Review has no reasonable prospect of success.
3.Should you wish to withdraw your Application now, your costs would be minimal, and if so we ask that you contact the writer as soon as possible to discuss.”
Up to that point I am therefore satisfied that the applicant had notice of the orders made by the registrar on 17 August 2005 and further was given notice of the intention of the respondent to seek, by way of a motion, summary dismissal of the application. It is evident from the affidavit of Emily Jane Nance that information was then obtained from the department on 30 August 2005 that the applicant had departed Australia apparently on 16 August 2005.
On 31 August 2005 the respondent filed the notice of motion in accordance with the orders made by the registrar on 17 August 2005. Clearly, at the time the notice of motion was filed, the respondent was then aware that the applicant had indeed departed Australia. To that extent, that process became somewhat unnecessary. Nevertheless, I am satisfied that at the very least the notice of motion is properly before this court on this day.
A further concern arose from the chronology of events in that the orders made on 17 August 2005 provided for the directions hearing to be adjourned to 14 September 2005. I understand that as a result of administrative arrangements that date was vacated, though from my examination of the file it does not appear that that administrative arrangement was the subject of any or any adequate notice provided by the court to the applicant.
In my view that type of administrative arrangement is inappropriate. Whether or not in cases of this kind there is any arguable case or indeed any merit in the application does not remove from the court the responsibility of providing adequate and proper notice to applicants on record. Fortunately in this case, and appropriately, the solicitors for the respondent, by letter dated 2 September 2005, have in fact provided notice to the applicant at the last known address of the return date of the notice of motion.
Perhaps unfortunately, the vacation of the earlier date did not seem to be the subject of notice. Nevertheless, I am now satisfied on the basis of that second item of correspondence dated 2 September 2005 that the applicant in this instance has been given appropriate notice that the matter would be before the court and that a likely consequence of the non-appearance of the applicant would be that the application be summarily dismissed. The notice to the address for service in the absence of a notice of change of address or advice that the applicant has departed Australia is still good notice.
The process that I have just described indicates the inappropriateness of or the system of administrative adjournments and/or failure to dismiss at the first opportunity an application where there has been no appearance by the applicant. In this case, had the application been dismissed on 17 August 2005 pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules, then a great deal of costs and expense would have been saved, and given the chronology of events that we are now aware of - namely the departure of the applicant on 16 August 2005 - the matter would have been concluded on 17 August 2005.
In the circumstances, however, and relying upon the affidavit material provided by the respondent and specifically the affidavit of Emily Jane Nance, I am prepared to make an order based upon the court's own powers and/or the notice of motion now filed by the respondent that the application should be dismissed.
I am prepared to accept, having regard to the total inadequacy of the material provided by the applicant and knowing that the applicant has now departed Australia, to find that the application is an abuse of process and/or is frivolous or vexatious, and indeed in the circumstances, on the face of it the application discloses no reasonable cause of action in relation to the claim. For all of those reasons the court is prepared to dismiss the application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 October 2005
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