Young v Minister for Immigration
[2007] FMCA 162
•20 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUNG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 162 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary business entry visa – interlocutory dismissal of show cause application as incompetent. |
| Migration Act 1958 (Cth), s.477 Migration Litigation Reform Act 2005 Federal Magistrates Court Rules 2001 (Cth) |
| SZICO v The Minister for Immigration [2006] FCA 1803 |
| Applicant: | OK OU YOUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG255 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 20 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald DLA Phillips Fox |
INTERLOCUTORY ORDERS:
The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG255 of 2007
| OK OU YOUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 29 January 2007 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 16 May 2003. The application asserts notification of that decision on 16 June 2003. Pursuant to the transitional arrangements under the Migration Act 1958 (Cth) (“the Migration Act”), in these circumstances the applicant would be taken to have been notified of the Tribunal decision on 1 December 2005[1].
[1] See item 42 of Schedule 1 to the Migration Litigation Reform Act 2005
The Minister in his response filed on 5 February 2007 seeks dismissal of the application as incompetent, having regard to the prescribed time limits in s.477 of the Migration Act. That response has been served on the applicant at her address for service by letter dated 5 February 2007, exhibit R2. On 1 February 2007 the Minister’s solicitors wrote to the applicant at her address for service drawing to her attention this morning’s Court fixture, exhibit R1.
The applicant should in any event have been aware of the need to attend court when the return date was inserted on the application at the time of filing. She appeared today late, as I was in the course of pronouncing orders dismissing the application with costs. I informed the applicant that her application appeared to be incompetent and explained why. I invited submissions from her. She asked questions but did not wish to make any submissions once I had fully explained the position.
The application is approximately 12 months out of time and is plainly incompetent having regard to the principles in SZICO v The Minister for Immigration [2006] FCA 1803.
I will order that the application be dismissed as incompetent. I further direct that the title of the Minister be amended to the Minister for Immigration and Citizenship. On the question of costs, the Minister seeks an order for costs fixed in the sum of $800. That is less than the amount prescribed under the Federal Magistrates Court Rules 2001 (Cth) and I have no difficulty in accepting it.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $800.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 February 2007
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