Chan v Minister for Immigration

[2014] FCCA 3206

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3206

Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – no appearance by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 44.12

Applicant: KA HO NIXON CHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2886 of 2013

Judgment of: Judge Nicholls

Hearing date: 17 November 2014

Date of Last Submission: 17 November 2014

Delivered at: Sydney

Delivered on: 17 November 2014

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Ms S Given of Sparke Helmore

ORDERS

1. The application made on 21 November 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2886 of 2013

KA HO NIXON CHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 21 November 2013, seeking review of the decision of the Migration Review Tribunal, made on 28 October 2013, which affirmed the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa to the applicant.

2. The applicant appeared in person at the first Court date in this matter, on 18 December 2013. He was assisted by an interpreter in the Cantonese language at that Court event. A number of orders were made giving the applicant the opportunity to file any evidence by way of affidavit and any amended application. An order was made on that day setting the matter down for a show cause hearing today, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

3. When the matter was called today, there was no appearance by the applicant or on behalf of the applicant. The Minister sought that the matter be dismissed pursuant to r.13.03C(1)(c) of the FCC Rules.

4. The applicant’s absence today remains unexplained. There is no application for an adjournment. Nor am I aware of any communication from the Court’s Registry that the applicant attempted to seek to convey any difficulties with attending.  I am satisfied that the applicant had reasonable notice of the Court event today, given his appearance at the first Court date. I take into account the respondent’s exhibit one (“RE1”), which more recently reminded the applicant of the Court event today.  I am satisfied that it was sent to the address for service provided by the applicant to the Court. 

5. In all the circumstances, the applicant has had reasonable notice.  The non-attendance remains unexplained.  I am satisfied that I should make the order that the Minister seeks. I will make the order accordingly.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  4 March 2016