Bui v Minister for Immigration

[2016] FCCA 3262

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3262

Catchwords:
MIGRATION – Migration Act1958 (Cth) – temporary work (skilled) (subclass 457) visa application – non-appearance at final hearing by Applicant – Application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: NGOC CHAU BUI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1719 of 2016

Judgment of: Judge Dowdy

Hearing date: 30 November 2016

Date of Last Submission: 30 November 2016

Delivered at: Sydney

Delivered on: 30 November 2016

REPRESENTATION

No appearance by or for the Applicant.

Counsel for the Respondents: Ms A Wong.

Solicitors for the Respondents: Mills Oakley.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the Application filed in this Court on 4 July 2016 is dismissed with costs in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1719 of 2016

NGOC CHAU BUI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

(As Corrected)

1. This matter was set down on 5 August 2016 for hearing today at 10.15am in Court 9.3.  On that occasion procedural consent orders were agreed between the parties (when Mr Kumar appeared as solicitor for the Applicant), and the proceeding was set down for final hearing today at 10.15am in Court 9.3 at 80 William Street. 

2. There was a problem in the lifts here today at 80 William Street which meant that I could not gain access to Court 9.3, although Ms Wong was in attendance there at 10.15am, as I understand it, and so were my Associates.

3. Arrangements were made to get an alternative court on Level 8, but I directed my associate to call the matter three times outside Court 9.3 and he did so. He informs me, and I accept, that at 10.30am today the security officers were also asked to inform us here on Level 8 if the Applicant did belatedly appear, but no notification of her appearance has been given to us as at this time, which is now 10.55am.  There has been correspondence received by the First Respondent’s solicitors from the Applicant together with her submissions, which on their face would seem to indicate a preparedness and intention of the Applicant to appear today, but notwithstanding that, she has not appeared today.

4. I am satisfied that she knew that the matter was on today.  I would make the assumption that Mr Kumar, being a solicitor, and the solicitor for the Applicant, would have informed her of today’s date, and I am satisfied that the First Respondent’s solicitors at the time that they served the First Respondent’s Outline of Submissions advised her of the date and time today.  She has not availed herself of the opportunity to appear and argue her Application for review, and in the circumstance I am prepared to and now order that her Application be dismissed with costs.

Postscriptum

1. After having delivered the above judgment on the morning of 30 November 2016 the Registry of the Court forwarded to my Chambers at 5.19pm on that day several emails from the Applicant, one of which had been sent to the Registry at 11.29pm on 29 November 2016 indicating that the Applicant would not be attending Court on 30 November 2016 “because I was sick and a victim of cheater Mr Ted Kang about 457 sponsorship...”

2. This allegation by the Applicant that she could not attend the scheduled hearing on 30 November 2016 because she “was sick” was obviously not known to me or Ms Wong at the time I delivered the above judgment but if I had been then aware of its bare terms, on that basis alone I would not have been prepared to adjourn the hearing.

3. Be that as it may, it will be necessary for the Applicant to take such further steps, if any, as she may consider appropriate.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 20 December 2016

CORRECTIONS

1. Cover Sheet and Orders: Page 1, Catchwords – delete “protection visa application”, insert “temporary work (skilled) (subclass 457) visa application”