LIN v Minister for Immigration

[2013] FMCA 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 77

MIGRATION – Review of Migration Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicant.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: XIAOLONG LIN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2299 of 2012

Judgment of: Driver FM

Hearing date: 12 February 2013

Delivered at: Sydney

Delivered on: 12 February 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms R Jones
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates 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 $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates 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 Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2299 of 2012

XIAOLONG LIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 16 October 2012, seeking review of a decision of the Migration Review Tribunal (the Tribunal) made on 20 September 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a temporary student visa. 

2. The show cause application was given a return date of Thursday, 22 November 2012 at 9.30 am. However, it was not possible for the Court to conduct the first court date at that time and the first court date hearing was relisted at 9.30am on 30 November 2012. My associate wrote to the applicant by letter dated 29 October 2012, at his nominated address for service in his application, advising him of the relisted first court date hearing. The applicant attended in person on 30 November 2012 with the assistance of a Mandarin interpreter. At that time, the applicant signed consent orders with the solicitor for the Minister, which included an order listing the matter for a show cause hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules2001 (Cth) (Federal Magistrates Court Rules) on 11 February 2013 at 2.15pm. It subsequently transpired on the same day that no courtroom was available and my associate wrote to the parties advising them of the relisting of the matter to 2.15pm on 12 February 2013. The applicant was asked to attend Level 6, John Maddison Tower, at this time. That letter was sent to the same address as my associate’s earlier letter advising of the relisted first court date. There was no response to that letter, and it does not appear that it was returned.

3. On 31 January 2013, the Minister’s solicitors wrote to the applicant at his address for service to provide a copy of the Minister’s written submissions.  Paragraph 2 of that letter reminds the applicant of the listing today at 2.15pm at the Federal Magistrates Court, John Maddison Tower, 88 Goulburn Street, Sydney.  Paragraph 3 of the letter asked the applicant to note that should he fail to appear on the above date, orders might be sought that his application be dismissed with costs.  I received that letter as an exhibit[1]

   [1] exhibit R1

4. When the matter was called this afternoon, there was no appearance by or on behalf of the applicant.  The matter has been called twice.  There is no explanation for the applicant’s non-attendance.  An attempt was made by my deputy associate to contact the applicant on his nominated mobile telephone number with the assistance of the Mandarin interpreter.  That attempt was unsuccessful.  The call rang out.  I received no indication that the applicant attended Court mistakenly yesterday in accordance with the consent orders which were amended later on the same day.

5. I will order that the application be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.

6. 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 $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

7. 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 Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  14 February 2013