Zhou v Minister for Immigration
[2007] FMCA 1074
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHOU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1074 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – non appearance by the applicant. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.476, 477 |
| Applicant: | MENGZE ZHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1757 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr O Young Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $400.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1757 of 2007
| MENGZE ZHOU |
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 under the Migration Act 1958 (Cth) (“the Migration Act”) filed on 4 June 2007 purporting to seek review of a decision of a delegate of the Minister made on 1 February 2007 and allegedly notified to the applicant on the same day.
There are two immediate problems on the face of the application. The first is that the applicant purports to seek review of a decision of a delegate of the Minister that appears to have been reviewable by the Migration Review Tribunal (“the Tribunal”). That appears from the documents annexed to an affidavit by the applicant filed with the application on 4 June 2007. If that be right, then the decision would appear to be a “primary decision” which this Court cannot review[1].
[1] See s.476(2)(a) and (4) of the Migration Act
Secondly, assuming the applicant was in fact notified of the decision on the day that he claims, the application would be incompetent as it would be out of time, pursuant to s.477 of the Migration Act.
The applicant has not appeared at today's first court date on the application. The matter has been called twice and on each occasion was no appearance by or on behalf of the applicant. There is no explanation for the non-appearance of the applicant.
In the circumstances, I have decided to dismiss the application pursuant to rule 13.03A(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.
The Minister seeks a consequential order for costs fixed in the amount of $400. That is less than the amount that would be payable under the Court scale and I have no difficulty in accepting that costs of not less than that amount have been reasonably and properly incurred on behalf of the minister when assessed on a party and party basis. 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 $400.
I will further order that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served upon the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 July 2007
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