Lu v Minister for Immigration

[2017] FCCA 636

FEDERAL CIRCUIT COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 636

Catchwords:
MIGRATION – Migration Act – protection visa application – No appearance by or for the Applicant at final hearing – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: MINYI LU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 751 of 2016

Judgment of: Judge Dowdy

Hearing date: 8 March 2017

Delivered at: Sydney

Delivered on: 8 March 2017

REPRESENTATION

No appearance by or for the Applicant.

Counsel for the Respondents: Ms S He

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Order that the Application in this Court filed on 31 March 2016 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the Applicant is an absent party.

2. Order the Applicant to pay the first respondent’s costs of the proceeding in the amount of $5300.

3. Order that in the event that the Applicant was to file an Application in a Case to reinstate her Application, on the first return date of that Application in a Case she is to be in a position to run and argue both the Application in a Case for reinstatement and her substantive Application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 751 of 2016

MINYI LU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. On 22 April 2016, this Application was before the Court for the first return date of the Application.  And on that occasion the Applicant appeared by her lawyer, Mr Tanvir Ahmed, who signed the Short Minutes of Order providing for the matter to be set down on 16 March 2017 and procedural orders were made and the matter was set down for final hearing on 16 March 2017 at 10.15 am. 

2. Ultimately, there was filed a notice of withdrawal of Mr Ahmed on 12 May 2016, and that Notice of Intention to Withdraw as Lawyer gave the address of the Applicant now to be 17 Forest Grove, Epping, in the State of New South Wales, with a different email address and telephone number.

3. It so happened that it became clear that I could give the matter an earlier hearing date and, accordingly, I had the matter relisted on 7 October 2016.

4. The matter was before me on 7 October 2016 when there was no appearance for the Applicant and I changed the date of hearing to today, being 8 March 2017 at 9.30 am. 

5. Then, pursuant to the procedural directions that I have already referred to in paragraph 1 above, by letter dated 27 February 2017, the Minister sent his Written Submissions to the Applicant at the address given in the Notice of Intention to Withdraw as Lawyer for the purposes of the final hearing today. That letter advised that the Application was listed for hearing today and that if the Applicant did not appear warned that the First Respondent might seek dismissal of the Application. Ms He informs me that this letter was not returned to sender.

6. Today there has been no appearance by the Applicant. 

7. The matter has been called at 2.15pm three times and there has been no appearance by or for the Applicant.  Prior to coming in to Court I had my Associate check with security to see whether or not the Applicant had appeared at 9.30am today, but she has not, according to the security officers, appeared at 9.30am or at any other time.  And indeed, I have been in this Court for much of the day from 9.30am and there has been no appearance by or for the Applicant prior to the matter being called at 2.15 pm. 

8. It is now 10 minutes to 3 and there is still no appearance.  Ms He, who appears for the Minister, tells me that she has just rung, a few minutes ago the mobile telephone number of the Applicant given in the Notice of Intention to Withdraw as Lawyer filed by Mr Ahmed and has spoken to someone but the Applicant was not available on that phone number.

9. The Minister asks for dismissal of the proceeding pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the Applicant is an absent party, and I propose to accede to that request.

10. The orders of the Court in this matter are as follows.

    a)Order that the Application in this Court filed on 31 March 2016 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the Applicant is an absent party.

    b)Order the Applicant to pay the first respondent’s costs of the proceeding in the amount of $5300.

    c)Order that in the event that the Applicant was to file an Application in a Case to reinstate her Application, on the first return date of that Application in a Case she is to be in a position to run and argue both the Application in a Case for reinstatement and her substantive Application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 31 March 2017