CHEN v Minister for Immigration

[2017] FCCA 1902

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1902

Catchwords:
MIGRATION – Application for Constitutional writ – failure to appear – appropriate matter for Court to exercise powers under r.13.03C(1)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules, r.13.03C(1)(c)

Applicant: BING CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3420 of 2016

Judgment of: Judge Street

Hearing date: 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Sydney

Delivered on: 9 August 2017

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Mr A Day
DLA Piper

ORDERS

1. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,490.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3420 of 2016

BING CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (the “Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 November 2016. The applicant’s last substantive visa was held on 15 March 2010. 

2. On 6 April 2017, a Registrar of the Court made orders fixing the matter for hearing today. The matter has been called outside the Court and the applicant has failed to appear.

3. The first respondent has moved for the application to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the “Rules”). The first respondent has had read in support of that application and affidavit of Ms Kim Mai Nguyen, identifying notification to the applicant of a reminder sent on 2 August 2017 foreshadowing that the proceedings would be the subject of an application for dismissal and costs if the applicant failed to appear. That communication was sent both to the post office address and residential address identified on the applicant’s application. I am satisfied the applicant was aware of the hearing date.

4. I am satisfied this is an appropriate matter in which to exercise the court’s powers under r 13.03C(1)(c) of the Rules. The application is dismissed under r 13.03C(1)(c) of the Rules. 

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

Date: 27 October 2017