Sandoval v Minister for Immigration

[2015] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDOVAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 618

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – no appearance by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: HUGO EDUARDO GACHANCIPA SANDOVAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 646 of 2014

Judgment of: Judge Nicholls

Hearing date: 5 March 2015

Date of Last Submission: 5 March 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

Solicitors for the Applicant: No appearance

Solicitors for the Respondents: Ms A Wong of DLA Piper

ORDERS

1. The application made on 17 March 2014 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $4,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 646 of 2014

HUGO EDUARDO GACHANCIPA SANDOVAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant s.476 of the Migration Act 1958 (Cth) on 17 March 2014 seeking review of the decision of the Migration Review Tribunal made on 19 February 2014 which affirmed the decision of the Minister's delegate to refuse a student visa to the applicant.

2. The applicant attended at the first Court date in this matter on 9 April 2014 in person. He was assisted by an interpreter in the Spanish language. Amongst other orders made on that day in the applicant's presence, his application was set down for final hearing today (5 March 2014) at 10.15am before me.

3. When the matter was called today there was no appearance by the applicant.  I adjourned to see if transportation difficulties may have arisen and to see if the applicant was to appear.  It is 20 minutes past the scheduled time of the Court event, and there has been no appearance by the applicant.

4. The Minister, in these circumstances, has applied for the application to be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for non-appearance.

5. I have before me the affidavit of Ms Dalyna Khong, affirmed on 4 March 2015, an administrative assistant employed by the Minister's solicitors, which has two annexures. I am satisfied on that evidence, and also taking into account the applicant's presence at the first Court date, that the applicant had reasonable notice of the Court event today. 

6. To the best of my knowledge there has been no communication with the Court's registry indicating any difficulties on the part of the applicant in attending today. Nor is there any application for an adjournment before the Court. The applicant’s absence remains unexplained.

7. In all the circumstances I am satisfied that the Minister’s application for dismissal in the absence of the applicant should be granted. I will make the order accordingly.

8. It is appropriate in those circumstances that I make the order that the Minister seeks.  It is also appropriate, in the circumstances, that I make an order for costs. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  23 March 2015