Chung v Minister for Immigration

[2014] FCCA 610

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUNG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 610

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – dismissal of show cause application at the first court date on account of the non appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: YEUNG PAK CHUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 400 of 2014

Judgment of: Judge Driver

Hearing date: 27 March 2014

Delivered at: Sydney

Delivered on: 27 March 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Mr R Ray

Clayton Utz

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 400 of 2014

YEUNG PAK CHUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 21 February 2014 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 14 January 2014.  The Tribunal found it did not have jurisdiction in the matter before it.  That was on the basis that the review application was lodged outside the prescribed period for lodgement.  It appears from the Tribunal decision that the applicant had provided an email address to the Minister’s Department which the Department used to notify her of the decision of the delegate. 

2. The Tribunal wrote to the applicant on 5 November 2013 inviting submissions on the issue of jurisdiction.  The Tribunal calculated that the review application needed to be lodged by 3 October 2013 and was not lodged until 18 October 2013.  The applicant, in responding to the Tribunal’s invitation to comment, raised no issue concerning the notification of the delegate’s decision, other than to say that she had not noticed the email.

3. In the circumstances, it is difficult to envisage what legal issue could be seriously agitated in opposition to the Tribunal decision.  The applicant did not appear at today’s first court date hearing on the show cause application.  The return date is clearly marked on the face of the application, which appears to have been filed by the applicant in person.

4. I consider, in the circumstances, given that the applicant has failed to appear, there is no explanation for the non-appearance[1] and the matter having been called twice, that I should dismiss the application on account of that non-appearance.

   [1] The applicant sent an email to my associate at 10.02am on 27 March 2014 seeking an adjournment.  That email was not seen by me or my associate until the first court date directions had concluded and the applicant was so advised.

5. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules.

7. I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  31 March 2014