Padavala v Minister for Immigration

[2005] FMCA 522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PADAVALA v MINISTER FOR IMMIGRATION [2005] FMCA 522

MIGRATION – Visa – Student (Temporary) (Class TU) visa – where the applicant did not attend the hearing.

PRACTICE & PROCEDURE – Non attendance by applicant – whether Court should make inquiries before dismissing application pursuant to Rule 1303A of the Federal Magistrates Court Rules 2001 – costs – circumstances justifying order.

Migration Act 1958 (Cth), s.474
Federal Magistrates Court Rules 2001 R. 13.03A

Applicant: SUDHAKAR PADAVALA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3763 of 2004

Judgment of: Scarlett FM

Hearing date: 11 April 2005

Date of Last Submission: 11 April 2005

Delivered at: Sydney

Delivered on: 11 April 2005

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the Application is dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3763 of 2004

SUDHAKAR PADAVALA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision made by the Migration Review Tribunal on 6th October 2004. The Tribunal affirmed a decision by a delegate of the Respondent Minister that the Applicant is not entitled to a Student (Temporary) (Class TU) visa.

2. The Applicant filed his application in the Federal Court on the

   
   

   2nd November 2004. The application was listed before a Registrar of the Federal Court on 17th November 2004. The Applicant attended Court on that occasion. The Registrar transferred the matter to this Court with the consent of the Applicant and listed it for final hearing.

3. The application is listed for final hearing today. I note that there is no appearance by the Applicant at 2.50 p.m. The matter was called at

   
   

   2.15 p.m. The Applicant did not appear, so I stood the matter down.

   
   

   I am aware that my Chambers staff have received no message or telephone call or fax or any other notification from the Applicant or from anyone on his behalf indicating that he would be late or that he was unwell or otherwise delayed or hindered from attending. I also note that the Applicant has been called three times outside the courtroom and there has been no response to the call. I further note that counsel and the solicitor for the Respondent have appeared promptly, on time, and are ready to proceed today.

4. I see no reason why the matter should proceed further than it has done and I am satisfied that it is a matter that I should deal with under the provisions of Rule 13.03A (c) of the Federal Magistrates Court Rules. The application is dismissed for failure by the Applicant to appear, this not being the first Court date.

5. The Respondent has applied for an order for costs, to cover the costs thrown away by failure of the Applicant to appear. The Respondent’s lawyers have had no warning that the Applicant would not attend, and they were obliged to prepare the matter and set aside the time for a final hearing. This is a suitable matter for a costs order. Mr Reilly of counsel, who appears for the Respondent, seeks a lump sum order in the amount of $4,250.00. I consider this to be a reasonable sum to cover the costs thrown away by the failure of the Applicant, not only to appear, but to give any warning that he was not intending to appear.

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

Associate:  S.Polley

Date:  21 April 2005