VMAO v Minister for Immigration
[2003] FMCA 434
•22 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VMAO v MINISTER FOR IMMIGRATION | [2003] FMCA 434 |
| MIGRATION – Review of Refugee Review Tribunal decision. PRACTICE AND PROCEDURE – Parties – dismissal of application. |
Federal Court Rules, O 32 r.2
Pham v University of Queensland (2002) FCA 203
| Applicant: | VMAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 352 of 2003 |
| Delivered on: | 22 September 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 22 September 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Mr G Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
I order that the applicant is to pay the respondent's costs of these proceedings in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 352 of 2003
| VMAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before me is an application for an order for review, pursuant to section 39 of the Judiciary Act, to review a decision of the Refugee Review Tribunal dated 10 December 2002 which was handed down on 10 January this year affirming the decision of the delegate of the respondent minister that the applicant is not entitled to the grant of a protection visa. The applicant has sought a review by means of an application dated 6 February 2003.
He commenced proceedings in the Federal Court and alleged that the Tribunal had failed to exercise its jurisdiction or exceeded its jurisdiction or committed a jurisdictional error. There were three separate particulars provided. The allegations were the Tribunal had failed to observe and breached the rules of natural justice. There is an allegation of an error of law and the failure to properly construe the appropriate article in the refugee convention.
The circumstances are that at the time the applicant filed his application he was represented by a firm of solicitors, Wimal and Associates. He is no longer represented. The proceedings were transferred to this court and a notice of ceasing to act was filed. I have heard evidence from the solicitor on the record for the respondent, Ms Greaves, that the applicant telephoned her earlier this month. He confirmed that his solicitors were no longer instructed to appear for him and that he had not obtained other legal advice.
He asked Ms Greaves as to what would happen at the hearing. She advised him that the matter was listed for hearing today and that it would be in his best interests to attend court. She informed him that her instructions were to seek that his application should be dismissed and that she would be seeking an order for costs. She asked him if it was his intention still to appear whether or not he was represented and he told her that he thought so but he was not sure.
The matter was listed for hearing at 10.15 this morning. The applicant was called three times outside the court and did not attend. I stood the matter in the list to allow for any difficulties that may have arisen by means of an applicant arriving late. I called the matter again at
10.50 am. There was still no appearance. I note that there has been no message received at the court to indicate that the applicant has telephoned, nor has any person apparently telephoned on his behalf advising that he has been delayed. I see no reason therefore why I should adjourn the matter.
Mr Gilbert for the respondent asks me to dismiss the application. I am satisfied that it is the practice of this court in circumstances such as this to apply order 32 rule 2 of the Federal Court Rules, and I propose to do so in this case. That rule provides that if the party absent is an applicant or cross‑claimant, the court may dismiss the action or cross‑claim. In other words, if the respondent appears but the applicant does not appear, the respondent is entitled to judgment dismissing the claim. Order 32 rule 2 subrule 1(c) does not require the court to investigate the merits of the absent applicant's case, and I refer to the decision of Pham v University of Queensland (2002) FCA 203.
I am satisfied that in all the circumstances it is appropriate for me to dismiss the application. I dismiss the application. I am satisfied that it is a matter where I should make an order for costs. Costs follow the event. There is no reason why the court should exercise a discretion not to make an order for costs. It has been put to me that if the applicant did not attend or did not propose to attend, then it would have been appropriate for him to have attempted to negotiate some sort of agreement with the solicitor for the respondent at an earlier date, which could well have reduced the costs and in fact reduced the need for counsel to be briefed at all. Unfortunately that has not been the case.
I am of the view that the applicant should pay the respondent's costs.
I have considered the quantum of costs. I note the fact that it would have been appropriate if the respondent had been informed earlier of there being no necessity for counsel to be briefed, that costs would have been saved. Counsel could have taken another brief perhaps. The amount sought is a greater amount than I would normally order but I am, however, prepared to allow the sum of $6000 and I order that the applicant is to pay the respondent's costs of these proceedings in the sum of $6000. The application will be dismissed and will be removed from the pending cases list. I require a transcript of my reasons for this decision which can be placed on the record.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 2 October 2003
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