SHAO v Minister for Immigration

[2006] FMCA 110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 110

MIGRATION – VISA – Student visa – Student (Temporary) (Class TU) visa – review of visa refusal – subclass 572 Vocational Educational and Training Sector – exceptional reasons for grant of visa – where applicant did not attend the MRT hearing.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.474
Federal Magistrates Court Rules 2001R.13.03A(c)

Applicant: KAN SHAO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File No: SYG 2130 of 2005

Delivered on: 23 January 2006

Delivered at: Sydney

Hearing date: 23 January 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Brauer

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $2,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2130 of 2005

KAN SHAO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of the decision of the Migration Review Tribunal that was made on 20^th July 2005. The Tribunal affirmed a decision of the delegate finding that the Visa Applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.

2. I note from the decision that, and it appears at page 51 of the Court book, on 26^th May 2005 the Tribunal wrote to the Applicant inviting him to attend a hearing of the Tribunal. I also note that the Applicant did not attend the hearing which was scheduled for 10^th June 2005.

3. The Tribunal Member took the view that the Visa Applicant had sufficient time made available to him to prepare any documents or evidence. She also noted that he had provided no medical reason or other reason for being unable to attend the Tribunal personally to give evidence and present arguments.

4. The Tribunal in the circumstances considered it appropriate to proceed to hear the application without adjourning the proceedings further in order to allow another time for the Applicant to attend. I see no error in that decision.

5. The Applicant applied for a review of the decision of the Migration Review Tribunal which came before a Registrar of the Court on 8^th September 2005 and it was adjourned to a call over on 19^th October.  At the call over the application was listed for Final Hearing at 2:15pm on 31^st January 2007. 

6. In conducting a review of the Court's business and noting that some earlier hearing dates had become available, I arranged to re-list the matter and the matter came before the Court on 14^th December 2005.  There was no appearance by or on behalf of the Applicant and no message was received from the Applicant as to why he did not attend.

7. In the circumstances I decided to adjourn the proceedings so that it could be made clear to the Applicant, at whatever was his appropriate address, that if he did not attend on the next occasion then00000 the matter was likely to be dismissed. I adjourned the matter until today at 10:00am.

8. The Applicant has not attended and he did not attend when called at 10:23am nor has any message been received from him. I granted leave to file in Court an affidavit of Zoë Elizabeth Brauer, solicitor, sworn on 20^th January 2006 which annexes a copy of a letter and a copy of the orders made on 14^th December advising him of the adjourned date.

   
   

   I note that in the letter to the Applicant which was sent to the two addresses known to the Respondent he was advised that if he did not attend the hearing today, whether in person or by a legal representative, then the Minister’s lawyer was instructed to ask the Court to dismiss his application with costs. In my view the Applicant has been well and truly put on notice of the situation and he has not attended. 

9. This is an appropriate case to apply the provisions of r.13.03A(c) and I propose to dismiss the application for non attendance by the Applicant. In my view it is a suitable matter for an order for costs in favour of the Respondent.

10. There is an application for costs. The Applicant has been placed well and truly on notice that costs would be sought on the dismissal of an application. There have been four appearances before the Court. The amount sought is $2,700.00 which is well within the scale envisaged by Schedule 1 of the Federal Magistrates Court Rules 2001.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 February 2006