YE v Minister for Immigration

[2017] FCCA 2116

FEDERAL CIRCUIT COURT OF AUSTRALIA

YE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2116

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the Applicant – appropriate matter for Court to exercise powers under r.13.03C(l)(c) – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), s.375, 476

Applicant: HUAQI YE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 313 of 2017

Judgment of: Judge Street

Hearing date: 4 September 2017

Date of Last Submission: 4 September 2017

Delivered at: Sydney

Delivered on: 4 September 2017

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 313 of 2017

HUAQI YE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 January 2017 affirming a decision of the delegate not to grant the applicant a partner temporary class UK visa.

2. Orders were made by this Court on 10 May 2017 fixing the matter for hearing today at 9:30am. The matter was called at 9:30am, and the applicant failed to appear. The Court took the step, because of the applicant’s filing of submissions, of contacting the applicant on the telephone number identified on the application. The applicant answered, and with the benefit of the interpreter, the Court indicated that the application would be stood down until 2:00pm today.

3. The Court indicated in that telephone conversation that if the applicant failed to appear at 2:00pm, the application would be dealt with in the applicant’s absence, and that the Court would assume the applicant had made a deliberate decision not to attend Court. The matter has been called outside the Court, and it is now past 2:00pm, and the applicant has failed to appear.

4. Mr Reilly of counsel has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. Mr Reilly of counsel has tendered a letter dated 28 May 2017 forwarding to the applicant an outline of submissions and an affidavit in relation to certificates issued under s.375 and foreshadowing that in the absence of appearance, the first respondent would move to have the application dismissed with costs.

5. Mr Reilly of counsel has also tendered an email sent by the Court to the applicant and to the applicant’s solicitor at the time of the making of the orders of 10 May 2017 identifying the hearing date and place of hearing.

6. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

7. Accordingly, The application is accordingly dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

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

Date: 8 September 2017