Li v Minister for Immigration and Multicultural Affairs

[2006] FCA 467

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration and Multicultural Affairs [2006] FCA 467

Federal Court of Australia Act 1976 (Cth), s 25(2B)(ba), s 25(2B)(bb)(ii)

JIE LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 2394 of 2005

COWDROY J
20 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2394 OF 2005

BETWEEN:	JIE LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	COWDROY J
DATE OF ORDER:	20 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant pay the respondent’s costs in the sum of $3,900.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2394 OF 2005

BETWEEN:	JIE LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	COWDROY J
DATE:	20 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court this afternoon is the hearing of an application for leave to appeal from the judgment of Smith FM delivered on 14 November 2005.  The judgment of Smith FM relates to an appeal from a decision of the Migration Review Tribunal.

2. The application for leave to appeal is supported by an affidavit of the applicant in which he deposes:

   1.I am the applicant herein.  I believe I have a reasonable chance of success in my appeal to the Full Court of Australia.  I seek leave from the court to permit me to lodge the appeal.

3. The application to the Federal Magistrates Court was filed on 4 July 2005 and had a first return date of 27 July 2005.  The applicant attended before the court on that occasion, and Smith FM gave directions to the applicant to file an amended application giving complete particulars and any affidavit evidence by 4 October 2005.  Smith FM fixed the adjourned directions hearing for 18 October 2005 at 10.15 am on level 6 of the Court building.

4. The applicant failed to attend before Smith FM at that time, and accordingly the Federal Magistrate dismissed the application in his absence.

5. On 25 October 2005 the applicant applied to have the orders of Smith FM set aside and have the appeal reinstated. He said the reason for his non-attendance at the directions hearing was that he went by mistake to Level 8 of the court building instead of Level 6.

6. In a judgment delivered by the Smith FM on 14 November 2005, his Honour recorded that he was inclined to believe that the applicant had attended the wrong level on the day of the directions hearing. However, having considered the evidence filed by the applicant, his Honour found on the merits of the application that the applicant had no reasonable prospects of success, and accordingly declined to reinstate the appeal.  It is from that decision that the appeal is brought to this Court.

7. The applicant has not appeared today. Two telephone calls have been made to him by the interpreter, Ms Hui Xin Chen.  In the first telephone call, the applicant indicated that he wished to ‘withdraw’ from the proceedings. A second telephone call was made to confirm that it was the applicant’s wish to withdraw from the proceedings in their entirety, and not simply to seek an adjournment. Ms Chen has given evidence as to the two conversations, and stated that the applicant indicated that he wished to abandon the whole of these proceedings.

8. The Court therefore accepts that the applicant does not wish to proceed with the application for leave to appeal.

9. Section 25 of the Federal Court of Australia Act 1976 (Cth) entitles the Court, inter alia, to dismiss proceedings where there is a want of prosecution (s 25(2B)(ba)) or where the appellant fails to attend the hearing of the appeal (s 25(2B)(bb)(ii)).

10. It is clear that the applicant in these proceedings does not intend to prosecute the proceedings and further, he has failed to appear.  Accordingly, the Court is entitled to dismiss the proceedings on either of these grounds. In the circumstances, an order dismissing the appeal should be made.

11. The respondent has applied for its costs of these proceedings. In the circumstances it is appropriate that the applicant be ordered to pay the respondent's costs.

12. Accordingly, the Court will make the following orders:

    1.        The proceedings be dismissed.

    2.The applicant pay the respondent's costs in the sum of $3,900.

I certify that the preceding twelvc (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:             1 May 2006

Counsel for the Applicant:	The applicant did not appear.
Counsel for the Respondent:	A Cox (solicitor)
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 April 2006
Date of Judgment:	20 April 2006