Li v Minister for Immigration and Citizenship

[2008] FCA 1687

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration and Citizenship [2008] FCA 1687

CORRIGENDUM

TIAN LUN LI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1174 of 2008

BESANKO J
6 NOVEMBER 2008 (CORRIGENDUM 17 NOVEMBER 2008)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TIAN LUN LI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 NOVEMBER 2008
WHERE MADE:	SYDNEY

CORRIGENDUM

1.On the cover page, the orders page and the first page of the reasons, the name of the Second Respondent should be the “Migration Review Tribunal”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        17 November 2008

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration and Citizenship [2008] FCA 1687

TIAN LUN LI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1174 of 2008

BESANKO J
6 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: TIAN LUN LI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed in default of agreement.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1174 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: TIAN LUN LI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	6 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a federal magistrate on 7 July 2008. The federal magistrate made an order dismissing the appellant’s application for constitutional writs in relation to a decision made by the Migration Review Tribunal. The appeal was listed for hearing before me on Monday, 3 November 2008 at 2.15 pm. The appeal was called on at that time, but the appellant did not appear. The first respondent sought an order that the appeal be dismissed on the ground that there had been a failure by the appellant to attend a hearing relating to the appeal (see s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth)).

2. The address given by the appellant as his address for service is [address deleted – I will refer to it as “Address A”]. The court records indicate that the National Appeals Registrar sent a notice to the appellant at Address A on 16 September 2008, advising him of the date and time for the hearing of the appeal. In addition, the first respondent wrote to the appellant at Address A on 23 September 2008 and again on 28 October 2008. In both letters, the first respondent referred to the date and time fixed for the hearing of the appeal. The court records also indicate that an invoice for fees dated 8 October 2008 was sent to the appellant. That invoice incorrectly referred to the appeal being listed for hearing on Monday, 3 November 2008 at 10.15 am. By mistake, that was sent to an earlier address that the appellant had previously given. In those circumstances, I did not think it appropriate to make an order dismissing the appeal until further inquiries had been made as to how it was that the invoice for fees had been sent to the address indicated. Those inquiries (after Monday, 3 November 2008) revealed that in all probability the appellant did not, in any event, receive the invoice for fees. On Monday, 3 November 2008, I made an order that the hearing of the appeal be adjourned to today.

3. The court records reveal that after Monday, 3 November 2008, the National Appeals Registrar wrote to the appellant at Address A, advising him of the hearing listed for Thursday, 6 November 2008 at 2.15 pm. Unfortunately, the first letter, dated 3 November 2008, stated that the hearing would take place at 80 William Street, East Sydney. That error was immediately corrected, and a further letter was sent to the appellant, on 4 November 2008, advising him that the hearing would take place at the Law Courts Building, Queens Square, Sydney, courtroom 21C. In addition, the first respondent wrote to the appellant on 3 November 2008 advising him of the date and time and advising him that the appeal had been adjourned until today. The first respondent’s letter of that date was sent to Address A.

4. Out of an abundance of caution, a second letter was sent to the earlier address which had been used on the invoice for fees and it appears that that letter has been returned to the first respondent with advice that the appellant has moved from that address and left no forwarding address. That is consistent with the fact that the appellant gave a different address for service in his notice of appeal.

5. In the circumstances, I am satisfied that it is appropriate to make an order dismissing the appeal on the ground that the appellant has failed to attend a hearing relating to the appeal. The appellant was given adequate notice of the proposed hearing of the appeal on Monday, 3 November 2008 and today.

   Conclusion

6. I will make an order under s 25(2B)(bb)(ii) that the appeal be dismissed. The second order I make is that the appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed in default of agreement.

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

Associate:

Dated:        12 November 2008

The Appellant did not appear
Solicitor for the First Respondent:	Mr A Markus of the Australian Government Solicitor

Date of Hearing:	3 and 6 November 2008
Date of Judgment:	6 November 2008