Chou v Minister for Immigration
[2006] FMCA 1778
•23 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1778 |
| MIGRATION – Review of decision by Migration Review Tribunal – practice and procedure – no appearance by applicant at hearing before this Court – applicant has left Australia – whether proceeding should be dismissed pursuant to r.13.03A(c) of Federal Magistrates Court Rules 2001. |
| Federal Magistrates Court Rules 2001, rr.13.03A, 13.03A(c) |
| Applicant: | JIAN FENG CHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG2004 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 November 2006 |
| Date of last submission: | 23 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Ms E. Palmer, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2004 of 2005
| JIAN FENG CHOU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03A of the Federal Magistrates Court Rules 2001 that the applicant’s proceeding, commenced by way of application filed, on 28 July 2005, be dismissed by reason of the absence of the applicant at today’s hearing.
I note that the matter was set down for hearing for this morning at a directions hearing on 23 August 2005, at which the applicant appeared.
It is now 11.10am and the applicant has been called, and there is no appearance by or on behalf of the applicant. The matter was set down for hearing at 10.15am.
The first respondent reads the affidavit of Ellie Jane Palmer, sworn 17 November 2006. That affidavit annexes an email received, purportedly from the applicant, stating that he has successfully finished his Australian study and did so in December 2005, and that he left Australia at that time. The email states that the applicant is currently residing and working in China and does not need a student visa anymore, and would the first respondent please discontinue his case. That email is dated 16 November 2006.
The affidavit of Ms Palmer also annexes a movement check, disclosing that the applicant left Australia on 13 December 2005. The applicant departed Australia on 13 December 2005 as the holder of a bridging visa WA (sub‑class 010), being a visa that does not allow the applicant to re‑enter Australia.
On the evidence before me, I am satisfied that the applicant was aware of the hearing date today, and has chosen, for whatever reason, not to appear or participate in the hearing. There has been no communication received by this Court from the applicant, either seeking to discontinue his proceeding or seeking an adjournment of today’s hearing. In the circumstances, it is appropriate that the orders sought by the first respondent be made.
Accordingly, the proceeding before this Court is dismissed, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.
The first respondent seeks costs fixed in an amount of $5000.
The matter was set down for hearing today and the first respondent was obliged to expend costs in preparation for the hearing in compliance with directions made for trial. It was not until 16 November 2006 that any communication was received from the applicant about his proceeding. I note that the old Federal Magistrates Court Rules apply, and that, in the circumstances, the sum sought is less than would be provided under that costs schedule. Accordingly, I am satisfied that the costs sought by the first respondent are reasonable.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 28 November 2006
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