Lin v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA
Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 251
ZHI WEN LIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1122 OF 2000
TAMBERLIN J
SYDNEY
20 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1122 OF 2000

BETWEEN:

ZHI WEN LIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

20 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I should record that in the file there is a note from my associate of a letter dated 19 January 2001 to the applicant at the address 32 Yarram Street, Lidcombe, which wrongly stated that the matter was listed for hearing at 10.15 am on 20 February. However, on 19 February a letter was sent correcting it to indicate that it was 9.30.
I note that the clock at the present time shows that it's 10.25. There have been no written submissions filed by the appellant and there is no indication, his name having been called outside the Court, that he proposes to appear. Accordingly, I think this is an appropriate case to dismiss for want of appearance under O 32 r 2(1)(c). However, I do note that there is provision under O 35 r 7, in an appropriate case, for a person affected by an order or judgment made in the absence of a party to set it aside, but of course it is necessary to show circumstances sufficient to warrant the taking of this course.
Accordingly, the order which I make in the present matter is that the application be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Associate:
Dated: 15 March 2001

The Applicant did not appear

Counsel for the Respondent: D Jordan

Solicitors for the Respondent: Sparke Helmore

Date of Hearing: 20 February 2001

Date of Judgment: 20 February 2001

CaseChat Overview and Summary

In the Federal Court of Australia, Zhi Wen Lin, the applicant, sought judicial review of a decision made by the Minister for Immigration and Multicultural Affairs, the respondent. The dispute centred on the merits of the administrative decision to cancel the applicant's visa and to order his deportation from Australia. The case was heard by Justice Tamberlin in the New South Wales District Registry.

The primary legal issue before the court was whether the applicant, Zhi Wen Lin, had a right to be heard before his visa was cancelled and he was ordered to be deported. The court was required to determine whether the procedural fairness principles, as outlined in the common law and applicable administrative law principles, were adhered to by the Minister in making the decision to cancel the applicant's visa and order his deportation. The court also had to consider the procedural fairness requirements under the Migration Act 1958 (Cth) and the applicable administrative law principles.

Justice Tamberlin found that the applicant, Zhi Wen Lin, did not appear before the court despite being duly notified of the hearing date and time. The court noted that there were no written submissions filed by the applicant and there was no indication that he intended to appear when his name was called. The court considered the procedural fairness requirements and concluded that the applicant had not demonstrated a sufficient interest in the outcome of the matter to warrant a hearing. As such, the court dismissed the application for judicial review on the grounds of the applicant's failure to appear before the court. The court also noted that the applicant had the option to apply to set aside the order or judgment made in his absence, provided he could demonstrate sufficient circumstances warranting such a course.

The final orders of the court were that the application for judicial review be dismissed with costs. The dismissal was made under Order 32 rule 2(1)(c) of the Federal Court Rules for the applicant's failure to appear before the court. The court did not make any orders regarding the substantive merits of the administrative decision to cancel the applicant's visa and order his deportation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1122 OF 2000

BETWEEN:	ZHI WEN LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	20 FEBRUARY 2001
PLACE:	SYDNEY

The Applicant did not appear
Counsel for the Respondent:	D Jordan
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	20 February 2001
Date of Judgment:	20 February 2001