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MIGRATION - Visa - student visa - Migration Review Tribunal - application for review of decision of the Migration Review Tribunal affirming a decision of delegate of the Minister not to grant a student visa to the Applicant - Applicant a citizen of China - no appearance by Applicant at final hearing.

Ho v Minister for Immigration [2004] FMCA 928 (18 November 2004)

Ho v Minister for Immigration [2004] FMCA 928 (18 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HO v MINISTER FOR IMMIGRATION
[2004] FMCA 928




MIGRATION - Visa - student visa - Migration Review Tribunal - application for review of decision of the Migration Review Tribunal affirming a decision of delegate of the Minister not to grant a student visa to the Applicant - Applicant a citizen of China - no appearance by Applicant at final hearing.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.475A

Federal Magistrates Court Rules 2001, R. 13.03A

Applicant:
HO CHUN KIT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1508 of 2004




Delivered on:


18 November 2004




Delivered at:


Sydney South




Hearing date:


18 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

The Applicant:


No appearance




Counsel for the Respondent:


Mr Lloyd




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The Application is dismissed under Rule 13.03A.

(2) The Applicant is to pay the Respondent's costs fixed in the amount of $4,200.00.

(3) Transcript of reasons for decision required.

(4) Application removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1508 of 2004

HO CHUN KIT



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Migration Review Tribunal which was handed down on 16 April 2004. That decision affirmed a decision of a delegate of the Minister to refuse to grant a student temporary visa to the Applicant.

2. The matter was listed for final hearing today. The Applicant has not appeared. I stood the matter down and allowed time for inquiries to be made to see if the Applicant had gone to another Court room by mistake or if the Applicant had telephoned either the Court or the Respondent's solicitor's office to advise that he had been delayed for some unavoidable reason. No calls have been received.

3. The Applicant was called again at 2.42 pm and has not appeared. There is no explanation as to why the Applicant is not here to prosecute his case. I am asked to dismiss the Applicant under the provisions of Rule 13.03A of the Federal Magistrates Court Rules. That seems to me to be highly appropriate in the circumstances. It is a final hearing, this is not the Court first date, there is no appearance by the Applicant, there is no explanation by the applicant and the Rules envisage such a situation.

4. The application is dismissed. It is a matter where an order for costs has been sought. There has been no opportunity for costs to be mitigated due to the unexplained absence of the Applicant. The Respondent appears to have prepared the case and the respondent has had no opportunity to do anything to save the costs that had to be expended. Costs follow the event, the Applicant is to pay the Respondent's costs and I fix those costs in the amount of $4250. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

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

Associate: V Lee

Date: 1 December 2004
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