Gu v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1019

FEDERAL COURT OF AUSTRALIA

Gu v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1019

MIGRATION – Appeal dismissed for failure to attend hearing – no point of principle.

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii), s 25(2B)(bc)
Migration Regulations 1994

DAI LIANG GU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ORS

VID 1173 of 2004

CRENNAN J
21 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1173 OF 2004

On appeal from a decision of the Federal Magistrate’s Court constituted by Federal Magistrate Phipps

BETWEEN:	DAI LIANG GU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CRENNAN J
DATE OF ORDER:	21 JULY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave be granted to Gil Boffa of Gil Boffa & Associates, the solicitors on record to withdraw as the Appellant’s solicitor in this proceeding.

2.The appeal be dismissed.

3.The appellant pay the respondent’s costs $4,500.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1173 OF 2004

On appeal from a decision of the Federal Magistrate’s Court constituted by Federal Magistrate Phipps

BETWEEN:	DAI LIANG GU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CRENNAN J
DATE:	21 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant has filed a notice of appeal dated 24 September 2004 appealing from the whole of the judgment of Phipps FM given on 3 September 2004. 

2. The brief background to this appeal is as follows.  The appellant is a citizen of China who entered Australia on 19 February 2000 on a Student (Temporary) (Class TEU) visa, subclass 560 which expired on 15 March 2002.  The appellant was granted a subclass 573 visa on 26 February 2002, which was valid until 31 August 2005.  This visa was subject to certain conditions, including condition 8202 (Enrolment and Course requirements) of the Migration Regulations 1994.  The appellant was attending a course at Monash International College, which is part of Monash University.  On 21 November 2002 the visa was cancelled because the appellant had not substantially complied with condition 8202 of his visa, in that he had not passed any subjects in Trimester 1 and 2 of 2002 and he had attended only 63% of the scheduled contact hours in Trimester 1 and 67% in Trimester 2. 

3. The appellant filed an application for review of the decision by the Minister’s delegate to refuse his visa by the Migration Review Tribunal (‘Tribunal’).  The Tribunal affirmed the delegate’s decision on 28 August 2003.  On 15 September 2003, the appellant applied to the Federal Magistrate’s Court for review seeking writs of certiorari and prohibition, a declaration that the decision was invalid and an order remitting the matter to the Tribunal.  On 3 September 2004 his Honour Phipps FM dismissed the appellant’s application.  On 24 September 2004 the appellant filed his notice of appeal in this Court.

4. The matter was fixed for hearing today.  The appellant did not appear when the matter was called on for hearing.  Mr Gil Boffa, the solicitor instituted by the appellant has filed an affidavit this day giving details of the numerous attempts made by him to contact the appellant.  All of these attempts have been unsuccessful and Mr Boffa has applied for, and been granted, leave for his firm to withdraw as the solicitors on record for the appellant.

5. Given the fact that the appellant was not present today when the matter was called on for hearing and having regard to the affidavit of the appellant’s solicitor, I am disposed to make an order pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the ‘Act’) which confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing. I note in this context s 25(2B)(bc) of the Act which empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default.

6. Accordingly the appeal is dismissed with an order that the appellant is to pay the respondent’s costs $4,500.00.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:             21 July 2005

Self Represented Applicant:	No appearance
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005