SURIYAMANEE v Minister for Immigration

[2012] FMCA 1230

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SURIYAMANEE v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1230

MIGRATION – Review of decision of Migration Review Tribunal – applicant failed to appear – whether grounds have any or any reasonable prospects of success – application dismissed.

Federal Magistrates Court Rules2001 (Cth), r.13.03C

Applicant: NIDAPHAN SURIYAMANEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1855 of 2012

Judgment of: Emmett FM

Hearing date: 13 December 2012

Date of Last Submission: 13 December 2012

Delivered at: Sydney

Delivered on: 13 December 2012

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondent: Mr Oliver Jones (Clayton Utz)

ORDERS

1. The proceeding before the Court, commenced by way of application filed on 27 August 2012, is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s hearing.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,520.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1855 of 2012

NIDAPHAN SURIYAMANEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application on 27 August 2012, be dismissed pursuant to 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 20 September 2012, the applicant attended a directions hearing before me and was given leave to file and serve, by 9 November 2012, an amended application and any evidence by way of affidavit on which the applicant relies. The applicant was also directed to file and serve written submissions 14 days before the hearing. The matter was set down for final hearing tomorrow, on 14 December at 10.15am.

3. There has been no document filed by the applicant in accordance with the directions made by the Court on 20 September 2012 or otherwise.

4. On 7 December 2012, a letter was written by my chambers to the applicant at the applicant’s address for service, notifying the applicant that the matter had been relisted before me today. The letter provided the date, time and Courtroom that the applicant was required to attend today.

5. I also note that the first respondent’s solicitor, Mr Jones, tendered a letter dated 11 December 2012, addressed to the applicant at the applicant’s address provided in an affidavit sworn by the applicant, and filed on 27 August 2012. That letter provided the same information to the applicant about the relisting of the matter from tomorrow to today. The letter from Clayton Utz was marked Exhibit 1R, and informed the applicant that if the applicant did not attend today’s hearing, the first respondent may ask the Court to dismiss the application with costs.

6. It is now 12.20pm. The matter was listed for hearing at 12.00pm today.  There has been no appearance by or on behalf of the applicant. There has been no communication received by the first respondent’s solicitors or this Court from the applicant, seeking an adjournment of today’s hearing, or for any other reason. 

7. The grounds of the application filed on 27 August 2012 are in the following terms. 

   “1. I should get back my visa as I am a student in Australia.

   2. My visa was refused on the basis that my application was made after 28 days of ceasing my substantive visa. But that time the situation was beyond my control as I was going through emotional depression due to my father’s death.

   3. The Tribunal did not look into the compelling and compassionate reasons.”

8. The applicant also filed an affidavit on 27 August 2012 annexing a copy of the decision of the Refugee Review Tribunal dated 27 July 2012 (“the Tribunal”).

9. The grounds make bare assertions, unsupported by particulars, and do not on their face disclose an error capable of review by this Court. It would appear that the Tribunal affirmed the decision on the review on the basis that it had no jurisdiction to review a decision of the delegate, because the application to the Tribunal was not made within the statutory period of 28 days after the applicant’s visa ceased to be in effect. Once a matter is filed outside the 28 day statutory period, it would appear that there is no residual discretion in the Tribunal to extend time for compelling and compassionate reasons. In the circumstances, the grounds of the application do not appear to have any or any reasonable prospects of success.

10. I am satisfied that the order sought by the first respondent is appropriate. Accordingly, the proceeding before this Court, commenced by way of application filed on 27 August 2012, should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules, by reason of the applicant’s failure to appear at today’s scheduled hearing.

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

Date: 18 December 2012