Sim v Minister for Immigration & Anor [2009] FMCA 48 (12 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 48

MIGRATION – Visa – educational (Temporary) (Class TH) visa – Migration Review Tribunal – where applicant failed to attend Federal Magistrates Court hearing.

Federal Magistrates Court Rules 2001, r.13.03C

Applicant:

EUN MI SIM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3281 of 2008

Judgment of:

Scarlett FM

Hearing date:

12 January 2009

Date of Last Submission:

12 January 2009

Delivered at:

Sydney

Delivered on:

12 January 2009

REPRESENTATION

The Applicant:

No appearance by the applicant

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondent:

Ms Whittemore

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(1) The application is dismissed pursuant to Rule 13.03C due to the non-attendance of the applicant.
(2) The applicant is to pay the first respondent's costs fixed in the sum of $1,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3281 of 2008

EUN MI SIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. The application was filed on 11th December 2008. I note that no supporting affidavit was filed. A notation appears on the application saying “affidavit will be filed in a couple of days”. A couple of days from 11th December has well and truly gone as it is now 12th January.
2. The applicant has not appeared. The applicant was called three times at 12:10 pm and there was no answer to the call. The application was listed before the Court at 11.30 am so more than half an hour has gone by, some 40 minutes in fact, since the matter was due to be dealt with. No message has been received from the applicant by the Court indicating that the applicant has been hindered, delayed or prevented from attending the hearing due to illness, injury, transport emergency or any other unforeseen circumstance.
3. The solicitor appearing for the Minister, Ms Whittemore, has tendered to the Court a copy of a letter dated 6th January 2009 addressed to the applicant reminding the applicant of the hearing date, enclosing a copy of the response that was filed and advising that if the applicant does not attend the first respondent would seek orders from the Court that the matter be dismissed and that the applicant pay the Minister's legal costs. The applicant has to my mind been put on notice of what would happen and has not attended.
4. It is for those reasons that I will dismiss the application under the provision of r 13.03C due to the non-attendance of the applicant. I am satisfied this is an appropriate matter for an order for costs in favour of the first respondent.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 29 January 2009