CHEN v Minister for Immigration

[2016] FCCA 866

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 866

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – failure to appear – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 44.12

Applicant: TAO CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2880 of 2015

Judgment of: Judge Street

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Sydney

Delivered on: 15 April 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Mr A Markus
Australian Government Solicitors

ORDERS

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

2. The applicant pay the costs of the first respondent fixed in the amount of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2880 of 2015

TAO CHEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 3 December 2015 a Registrar of the Court fixed the matter for hearing today at 9.30 am for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The substantive application seeks a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 28 September 2015 affirming the decision of the delegate not to grant the applicant a Medical Treatment Visitor (Class UV) visa.

2. The matter has been called outside the Court and it is now past 9:45 am and the applicant has failed to appear. The first respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

3. The first respondent has tendered a letter dated 14 March 2016 sent to the applicant’s address as identified on the application, enclosing the submissions of the applicant as well as reminding the applicant of the hearing date and noting that the first respondent will move to have the matter dismissed with costs if the applicant failed to appear.  There has been no communication by the applicant to the first respondent explaining the failure to appear. 

4. I am satisfied that the applicant was aware of the hearing date and that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

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

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

Date: 22 April 2016