Park v Minister for Immigration

[2006] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 996

MIGRATION – Migration Review Tribunal – application for review of decision of Migration Review Tribunal.

PRACTICE & PROCEDURE - Where applicant did not attend court – where solicitors for the respondent wrote to the applicant prior to the hearing advising of the necessity to attend court – letter an example of best practice by respondent’s solicitors.

Federal Magistrates Court Rules 2001 r. 13.03A

Applicant: SEUNG KYU PARK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 1349 of 2006

Judgment of: Scarlett FM

Hearing date: 19 June 2006

Date of last submission: 19 June 2006

Delivered at: Sydney

Delivered on: 19 June 2006

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Nanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed for non-appearance by the Applicant pursuant to Rule 13.03A (c) of the Federal Magistrates Court Rules 2001.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1349 of 2006

SEUNG KYU PARK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal. The First Respondent has filed a Response, pointing out that the Court does not have jurisdiction in relation to the decision. The application has been filed out of time and the Court cannot extend the time and I am referred to s.477(3) of the Migration Act.  It follows that the Court does not have jurisdiction. 

2. That, however, is an academic matter, because the Applicant has not attended Court. It is the last matter in the list to be called, it has been held in the list, and I specifically directed that the Applicant should be called three times outside the Court at 10:40am. There is no appearance. I am satisfied that the Applicant was aware of the time, date and place when the matter was due to be heard. Certainly, no message has been received from the Court indicating that the Applicant has been hindered or delayed in attending the Court. I am aware of the fact that an applicant in another matter this morning went to the Court at Queen's Square by mistake, but was speedily redirected and the Court here received telephone advice to indicate that that person was on the way.  In this case there has been no such misunderstanding. 

3. I note also that the solicitors for the Respondent wrote to the Applicant on 17^th May 2006, setting out that they act for the Minister, advising the Applicant of the time, date and place of the directions hearing and advising the Applicant of the need to obtain proper legal advice. The letter also makes it quite clear that if the Applicant fails to attend and has not notified the Court, that orders would be sought that the application be dismissed. 

4. I refer specifically to this letter, because I have read it through quite thoroughly, because a copy has been tendered to me. It stands in my opinion as an example of the sort of letter which should be forwarded by lawyers acting for the Respondent, and I certainly intend to bring it to the attention of my colleagues, as an example of what I consider to be best practice in this important jurisdiction of the Federal Magistrates Court. The Australian Government Solicitor is to be congratulated for advising applicants in a fair and comprehensive way of the situation.

5. In this case, as there is no appearance, I propose to dismiss the application under now Rule 13.03A(c) for non-attendance by the Applicant.  It is a proper matter for an order for costs and the relatively small figure of $300.00 is sought by the Respondent's lawyers.

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

Associate:  Virginia Lee

Date:  12 July 2006