MA v Minister for Immigration & Border Protection

[2014] FCCA 2550

FEDERAL CIRCUIT COURT OF AUSTRALIA

MA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2550

Catchwords:
MIGRATION – Practice & procedure – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: WEN MA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1979 of 2014

Judgment of: Judge Emmett

Hearing date: 4 November 2014

Date of Last Submission: 4 November 2014

Delivered at: Sydney

Delivered on: 4 November 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Ms Ada Wong (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1979 of 2014

WEN MA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit CourtRules 2001 (Cth) that the proceeding before this Court, commence by way of application filed on 15 July 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled first court date hearing.

2. In support of that application, the first respondent’s solicitor, Ms Wong, tendered a letter dated 14 October 2014 addressed to the applicant at the applicant’s address for service in Australia.  That letter was marked Exhibit 1R. 

3. Exhibit 1R provided details of today’s hearing time and place, and further informed the applicant that if the applicant did not attend, that the first respondent may seek to have the matter dismissed with costs for non-appearance.

4. I note that the application was filed on 15 July 2014 and on that occasion the matter was set down for first court date directions today at 9.30am, before me.  I do note however that the location of the courtroom changed and the applicant was informed of that change on 9 October 2014 in a letter sent by my chambers to the applicant. As I have already said, Exhibit 1R further gives those details again to the applicant.

5. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend.

6. The matter has been called on at least two occasions, the most recently within the last five minutes. There has been no appearance by or on behalf of the applicant, nor has there been any communication received from the applicant either by this court or by the first respondent’s solicitors seeking an adjournment or for any other reason.

7. Accordingly, the orders sought by the first respondent are appropriate and the proceeding before this Court, commenced by way of application filed on 15 July 2014, should be dismissed with costs.

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

Associate: 

Date:  6 November 2014