Soni v Minister for Immigration
[2013] FMCA 177
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SONI v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 177 |
| MIGRATION – Migration Review Tribunal. PRACTICE & PROCEDURE – application dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – applicant’s application for an adjournment refused. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 |
| Applicant: | PARUL BHAILAL SONI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2575 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 March 2013 |
| Date of Last Submission: | 4 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Appearing for the Respondents: | Ms K Flynn |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 8 November 2012, is dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the costs of the first respondent fixed in the amount of $1,296.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2575 of 2012
| PARUL BHAILAL SONI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 8 November 2012, be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the Court should be satisfied that the application does not raise an arguable case for the relief claimed.
Rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) is as follows:
“Show cause hearing
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.”
The application filed on 8 November 2012 states as the only ground of review:
“Schedule applies incorrect in my case so it should be reviewed.”
The applicant was unrepresented this morning, although had the assistance of an interpreter. I explained to the applicant that the role of this Court is limited and that the only issue before this Court is whether or not the decision is affected by a mistake that goes to the Tribunal’s jurisdiction. I explained to the applicant that this Court has no power to consider the relief sought unless it is satisfied that the decision is affected by a jurisdictional error, and that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake. I invited the applicant on several occasions to explain to me what she said was the error made by the Tribunal going to its jurisdiction.
It is plain on the face of the grounds of the application that they do not raise an arguable case for the relief claimed and, in the circumstances, I am satisfied that an order should be made under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) dismissing the proceeding on that basis.
The applicant then said that she wished to have time to approach a lawyer for legal advice. To the extent that that is an application for an adjournment, it was opposed by the solicitor for the first respondent on the basis that the applicant has had sufficient time in order to seek legal advice.
I asked the applicant if she had in fact made any approach to any particular person. The applicant said that she had approached several people but could not afford a lawyer. However, the applicant did not identify any particular person whom she has approached, nor has she made an appointment with any lawyer.
The application was filed on 8 November 2012. In the circumstances, the applicant has had sufficient time either to seek legal advice or to make arrangements for the provision of legal advice.
For all those reasons, the applicant’s application for an adjournment is refused and the proceeding before this Court, commenced by way of application filed on 8 November 2012, should be dismissed with costs on the basis that the grounds of the application do not raise an arguable case for the relief claimed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 12 March 2013
0
0
0