Guo v Minister for Immigration

[2014] FCCA 688

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 688

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – dismissal of show cause application on account of the applicant’s failure to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

CZBV v Minister for Immigration& Anor [2014] FCCA 500

Applicant: ENMING GUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 232 of 2014

Judgment of: Judge Driver

Hearing date: 7 April 2014

Delivered at: Sydney

Delivered on: 7 April 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms N Blake

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 $3,326 in accordance with rule 44.15(1) and item 2 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 his 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 232 of 2014

ENMING GUO

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 3 February 2014 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 9 January 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Guo, a temporary student visa.  The Tribunal records in its decision that Mr Guo appeared not to have a current certificate of enrolment at the time of the Tribunal decision.  Mr Guo had been invited to comment on that issue and had been warned that a failure to respond would result in the loss of his hearing opportunity before the Tribunal.  The Tribunal’s letter was returned marked “return to sender unclaimed”.  The Tribunal proceeded to affirm the delegate’s decision.

2. The matter came before me for first court date direction on 18 March 2014.  Mr Guo attended in person with the assistance of a Mandarin interpreter.  He consented to orders including an order fixing the matter for a show cause hearing today at 10.15am.  He was also given the opportunity to file and serve an amended application and additional evidence.  He has not taken that opportunity. 

3. The only evidence I have before me is the affidavit accompanying Mr Guo’s original application and the court book filed on 26 March 2014.

4. There was no appearance by or on behalf of Mr Guo when the matter was called this morning.  The matter has been called at 10.20am and 10.27am but, on both occasions, there was no answer to the call.  The solicitor for the Minister made an attempt to contact Mr Guo on the telephone number on his application but the phone had been disconnected.  Mr Guo had filed a notice of change of address for service in court by leave on 28 March 2014.  That set out a different mobile telephone number.  With the assistance of the interpreter, my associate attempted to contact him on that number but the attempt was unsuccessful.  The call was diverted to a message bank facility.

5. If Mr Guo had attended court this morning, I would have invited him to address the issues discussed in my recent decision in CZBV v Minister for Immigration& Anor[1].  As he has not attended court, the Minister has submitted that the application should be dismissed on account of that non-attendance.  I agree and I will so order.

   [1] [2014] FCCA 500

6. On account 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

7. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served on the applicant at his last known 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

Date:  10 April 2014