YU v Minister for Immigration

[2005] FMCA 1588

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YU v MINISTER FOR IMMIGRATION [2005] FMCA 1588

MIGRATION – Visa – student visa – Migration Review Tribunal – application for review of decision by MRT affirming a decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) visa – Subclass 572 – failure to meet course requirements – applicant a citizen of China – condition 8202 – where applicant attended the MRT hearing but did not attend the hearing of the Court.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 475A
Federal Magistrates Court Rules 2001, R 13.03A

SZDMD v Minister for Immigration [2004] FMCA 927
SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126

Applicant: YANG YU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 3333 of 2004

Delivered on: 23 February 2005

Delivered at: Sydney

Hearing date: 23 February 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Ms Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. That the Respondent is to write to the Applicant drawing her attention to Rule 16.05 of the Federal Magistrates Court Rules 2001.

3. That the Applicant is to pay the Respondent’s costs fixed in the sum of $3850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3333 of 2004

YANG YU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Migration Review Tribunal made on 8^th September 2004. The decision of the Tribunal was to affirm the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa. The decision was made after a hearing that took place on 13^th July 2004.

2. The Applicant filed an application under section 39B of the Judiciary Act 1903 in the Federal Court on 1^st October 2004. In her application, she seeks the following:

   a)a writ of certiorari quashing the decision;

   b)a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law; and

   c)Costs.

3. On 25^th October 2004 Allsop J in the Federal Court transferred the proceeding to the Federal Magistrates Court. A Deputy Registrar of the Court listed the proceeding for final hearing in this Court on 23^rd February 2005 at 2:15 p.m.

4. When the matter was called on at 2:15 p.m. today the Applicant did not appear. The Respondent Minister was represented by counsel and a Mandarin interpreter attended. I stood the matter down for 30 minutes, in case the Applicant had been delayed. The matter was then called again at 2:45 p.m. There was still no appearance by or on behalf of the Applicant. Over the intervening time I had caused inquiries to be made to see whether there had been any telephone call from the Applicant or from some other person on her behalf, or to see if any medical had been faxed to the Court.

5. Because there has been no appearance by or on behalf of the Applicant and no message indicating that the Applicant is ill or otherwise delayed or prevented from attending court, I am now satisfied that I can safely accede to the application by Ms Francois of counsel on behalf of the Minister to dismiss the Applicant’s application for non-attendance, under the provisions of Rule 13.03A of the Federal Magistrates Court Rules 2001.

6. I have previously indicated that I am reluctant to dismiss an application for non-attendance without holding the matter in the list for at least half an hour and checking whether any message has been received by the Court staff. I applied this procedure in SZDMD v Minister for Immigration [2004] FMCA 927 and I note that on 7 February this year Hely J in the Federal Court dismissed an application for an extension of time to file and serve a notice of appeal against that decision (see SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 126). At paragraph [6] of the decision, Hely J expressed the view that there was no realistic prospect of the applicant succeeding on an appeal on the question whether this Court had wrongly exercised its discretion by dismissing the application by reason of the applicant’s failure to attend.

7. There is no appearance by or on behalf of the Applicant. No message has been received from the Applicant or anyone on her behalf. There seems to be nothing to be gained in waiting any longer, and I dismiss the application under Rule 13.03A (c).

8. The Respondent now seeks an order for costs in the sum of $3,850.00. I believe that this figure is appropriate, as counsel has been briefed and the matter has been prepared for final hearing. I will make an order for costs in favour of the Respondent fixed in the sum of $3,850.00.

9. The Respondent must write to the Applicant drawing her attention to the provisions of Rule 16.05. Otherwise, the application will be removed from the list.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  31 October 2005