Zhang v Minister for Immigration

[2008] FMCA 894

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 894

MIGRATION – Review of a decision of the Migration Review Tribunal – refusal of a student visa – previous student visa cancelled within three years – cancellation apparently based on invalid visa condition – dismissal of show cause application due to the applicant’s non appearance.

Federal Magistrates Court Rules 2001 (Cth)
Migration Regulations

Dai v Minister for Immigration & Citizenship [2007] FCAFC 199

Applicant: BO ZHANG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 789 of 2008

Judgment of: Driver FM

Hearing date: 30 June 2008

Delivered at: Sydney

Delivered on: 30 June 2008

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents: Mr S Lloyd

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

3. The Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 789 of 2008

BO ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 3 April 2008.  The application seeks review of a decision of the Migration Review Tribunal (“the Tribunal” handed down on 14 March 2008.  The Tribunal affirmed a decision of a delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The matter came before me on 16 June 2008 on a first court date.  The applicant attended with the assistance of a Mandarin interpreter.  I made five orders, including an order listing the matter for a final hearing today at 10.15am.  I noted in those orders correspondence dated 11 June 2008 from the Minister's solicitors which raised for consideration an issue of whether the Tribunal decision may be affected by the decision of the Full Federal Court in Dai v Minister for Immigration & Citizenship [2007] FCAFC 199. In the light of that issue, the Minister prepared detailed submissions which were filed in the registry on 27 June 2008. Exhibit R1 is a letter from the Minister's solicitors to the applicant at his address for service, which appears to be the address of a migration agent. The letter was apparently couriered to that address on 27 June 2008. The letter notes that a copy of the Minister's submissions is enclosed and also notes that if Mr Zhang failed to attend Court today, the Minister might seek an order that the application be dismissed and would seek an order for costs.

3. There was no appearance by or on behalf of Mr Zhang when the matter was called at 10.24am.  There was again no appearance by or on his behalf when the matter was called a second time at 10.34am.  In between those times, an attempt was made to contact him by telephone on a mobile telephone number he had provided in his application and in an information sheet completed on 16 June 2008.  That attempt was unsuccessful as the telephone rang out.

4. There is no explanation for the non attendance of Mr Zhang and, in the circumstances, I agree with an oral application made by counsel for the Minister that the application should be dismissed on account of the applicant's non attendance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I note that this is an order made in the applicant's absence and, pursuant to rule 16.05 of the Federal Magistrates Court Rules, it would be open to the applicant to seek to have the application reinstated if sufficient cause could be shown. In that regard, I note that the issue raised by the Minister as a model litigant is an issue of substance.

5. The Minister's submissions deal with the question of whether any jurisdictional error on the part of the Tribunal could be discerned in circumstances where the Tribunal proceeded on the basis that the applicant had held a substantive visa which had been cancelled within three years of his application for a fresh visa, thereby disentitling the applicant to the visa he then sought.  The question is whether that cancellation, which was apparently based on an invalid certification requirement in condition 8202 in the Migration Regulations, was a factor that should have been considered by the Tribunal, either in relation to the threshold question of whether the previous visa had been validly cancelled, or alternatively, whether the invalidity of the condition, on the strength of the Full Court decision in Dai, was a compelling or compassionate circumstance that should have been taken into account. 

6. Due to the non appearance of the applicant today, there has been no opportunity for the Court to consider that issue and I express no view about it.

7. The Minister also seeks costs in accordance with the Court scale in the sum of $5,000. I see no reason to depart from the Court scale in this matter. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

8. I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

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

Associate: 

Date:  2 July 2008