Xue v Minister for Immigration & Border Protection

[2014] FCCA 598

FEDERAL CIRCUIT COURT OF AUSTRALIA

XUE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 598

Catchwords:
MIGRATION – Migration Review Tribunal.

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) rr.13.03C, 44.12

Applicant: MINGZHU XUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2847 of 2013

Judgment of: Judge Emmett

Hearing date: 26 March 2014

Date of Last Submission: 26 March 2014

Delivered at: Sydney

Delivered on: 26 March 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondents: David McLaren
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2847 of 2013

MINGZHU XUE

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 that the proceeding before this Court, commenced by way of application filed on 18 November 2013, be dismissed, pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Mr McLaren, tendered a letter, dated 20 March 2014, from the first respondent’s firm addressed to the applicant at the applicant’s address for service. That letter was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed by way of service upon the applicant a copy of the first respondent’s submissions, and informed the applicant that the matter is listed for a show cause hearing today at 10:00am before me. The letter provided the location of the court room and informed the applicant that if she did not attend today’s scheduled hearing the first respondent would seek to have the proceeding dismissed with costs.

4. On 7 March 2014, the applicant attended a directions hearing before me. On that occasion I explained to the applicant that this Court has no power to interfere with the decision of the Migration Review Tribunal (“the MRT”) unless the Court is satisfied that the MRT’s decision is affected by a mistake that goes to its jurisdiction. I explained to the applicant that the grounds of her application made bare, unparticularised assertions and, by themselves, did not disclose a complaint capable of review by this Court. I explained to the applicant that the rules of this Court provide that an application may be dismissed where the grounds of an application do not disclose an arguable case.

5. I also explained to the applicant at the directions hearing the cost consequences that may flow to her if she proceeded with her application and was unsuccessful and provided him with a copy of the Court’s cost schedule. The applicant confirmed that she wished to continue with her application.

6. Upon the application of the first respondent, the matter was set down for hearing today at 10:00am, pursuant to r.44.12 of the Rules, on the basis that the Court should not be satisfied that the grounds of the application do not raise an arguable case for the relief claimed. Those grounds are as follows:

   “Orders Sought by the Applicant:

   I disagree with Immigration and MRT’s decision. They did not consider that I may have been a genuine student and had not breached my visa condition. They did not consider the fact that I had compelling reasons for Schedule 2 issue. And I have provided explanation at MRT hearing to support my claim, however MRT did not give a good consideration.

   Immigration and MRT should granted my visa for student visa and allow me to continue my study.

   Grounds of Application:

   I am a Chinese citizen and have been a genuine student since I arrived in Australia. I always obey my visa condition and never breached it.

   Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.”

7. At the directions hearing on 7 March 2014, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any further evidence and submissions in support by 14 March 2014. No documents have been filed by the applicant, either in accordance with those directions or otherwise.

8. The matter was listed for hearing today at 10:00am. The time is now 11:07am. The matter has been called outside as recently as five minutes ago.  There has been no communication received by the applicant seeking an adjournment of today’s hearing or for any other reason, either by the Court or by the first respondent.

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

10. Accordingly, the orders sought by the first respondent are appropriate. The proceeding before this Court, commenced by way of application filed on 18 November 2013, should be dismissed, pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicant to appear at today’s scheduled hearing.

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

Associate: 

Date:  2 April 2014