Huang v Minister for Immigration & Border Protection

[2014] FCCA 321

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 321

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: TING HUANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2438 of 2013

Judgment of: Judge Emmett

Hearing date: 24 February 2014

Date of Last Submission: 24 February 2014

Delivered at: Sydney

Delivered on: 24 February 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitor for the Respondent: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2438 of 2013

TING HUANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 9 October 2013 be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled First Court Date hearing.

2. In support of the application, the first respondent tendered a letter from the first respondent’s solicitor, dated 24 October 2013, addressed to the applicant at the applicant’s address for service. That letter was marked exhibit 1R.

3. Exhibit 1R informs the applicant that the matter is listed for a directions hearing today at 3.00pm and provides the location of the Court. Exhibit 1R also informs the applicant that if the applicant does not attend, the first respondent may seek to have the matter dismissed.

4. I am informed by the solicitor for the first respondent, Ms Stone, that through the interpreter this morning, she attempted to contact the applicant when the time had passed for the hearing of this matter. Ms Stone informed me that the applicant said to her that she had thought the first court date was this Friday, being 28 February 2014. It is quite clear from the application, filed on 9 October 2013 and purportedly signed by the applicant, that the date and time of today’s directions hearing is today at 3 pm. The application also identifies the Court and the location of that courtroom.

5. In considering whether to adjourn the matter, I also have regard to the grounds of the application, which are as follows:  

   “1. MRT didn’t give me opportunity to answer questions.

   2. I’m too nervous in the interview, MRT didn’t consider this.

   3. I was not given a fair way to express myself.

   4. I’m under emotional pressure, but MRT didn’t consider this.”

6. Those grounds are unsupported by particulars and do no more than make bare assertions.

7. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and for whatever reason has chosen not to appear. As stated above, the matter was listed for directions at 3 pm. The time is now 3.40 pm. The applicant has been called outside on several occasions, the last of which being less than five minutes ago.

8. In the circumstances, the orders sought by the first respondent are appropriate and the application filed on 9 October 2013, should dismissed with costs pursuant to r.13.03C(1)(c) of the Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  17 March 2014