FEDERAL COURT OF AUSTRALIA
Chang v Minister for Immigration and Border Protection [2014] FCA 556
Citation: Chang v Minister for Immigration and Border Protection [2014] FCA 556 Appeal from: Chang v Minister for Immigration and Border Protection [2014] FCCA 572 Parties: NYUK TAI CHANG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 185 of 2014 Judge: BROMBERG J Date of judgment: 27 May 2014 Catchwords: PRACTICE AND PROCEDURE – dismissal of appeal for want of appearance by appellant. Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Cases cited: Chang v Minister for Immigration and Border Protection [2014] FCCA 572
Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394Date of hearing: 27 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Mr M Palfrey of Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 185 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: NYUK TAI CHANG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
27 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 185 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: NYUK TAI CHANG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
27 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from the judgment of the Federal Circuit Court of Australia published as Chang v Minister for Immigration and Border Protection [2014] FCCA 572. By that judgment, the primary judge dismissed with costs an application for judicial review of a decision of the Migration Review Tribunal, which refused to grant the appellant (Mr Chang) an Employer Nomination (Residence) (Class BW) visa. Mr Chang has appealed to this Court from that judgment.
The appeal was listed for hearing commencing this morning at 10.15 am. When the matter was called on for hearing there was no appearance by Mr Chang. I am satisfied that Mr Chang has been made aware of the hearing date and the potential for his appeal to be dismissed as a result of his non-attendance at the hearing. I am satisfied that notice of those matters was provided to Mr Chang including by correspondence from the first respondent’s solicitors of 24 April and 30 May 2014.
As outlined by Gray J in Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [10], there are three possible courses open to me owing to the non-appearance of Mr Chang. I could adjourn the hearing of the appeal and provide Mr Chang with a further opportunity to attend at a later time. I could exercise a power given to the Court by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal for the failure of Mr Chang to attend a hearing related to the appeal. Alternatively, I could proceed to attempt to deal with the appeal on its merits in the absence of Mr Chang.
For the reasons given at [11] to [13] by Gray J, I take the view that in the circumstances the interests of justice would be best served by making an order dismissing the appeal on the ground of the failure of Mr Chang to attend the hearing.
Accordingly, I will make an order dismissing the appeal and a further order that Mr Chang pay the first respondent’s costs.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 28 May 2014
- AGLC
- Chang v Minister for Immigration and Border Protection [2014] FCA 556
- Case
- [2014] FCA 556
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether to dismiss the appeal for the appellant's failure to appear and provide any explanation for their non-attendance. Additionally, the court had to consider whether, in the absence of the appellant, the appeal could be heard on its merits and, if so, whether there were any grounds on which the original decision could be successfully challenged.
The court found that the appellant had not only failed to appear at the hearing but had also not provided any satisfactory explanation for their absence. The court held that, in such circumstances, it was appropriate to dismiss the appeal for want of appearance. Furthermore, the court determined that the appeal did not have any merit, as the original decision was correctly made and there were no grounds for overturning it. Consequently, the court dismissed the appeal and ordered the appellant to pay the costs of the first respondent. This decision was in accordance with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in cases where an appeal is dismissed.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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