Zhang v Minister for Immigration & Border Protection

[2015] FCCA 1718

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1718

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE AND 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) r.13.03C

Cases Cited:
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559

Applicant: GE ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1272 of 2015

Judgment of: Judge Emmett

Hearing date: 22 June 2015

Date of Last Submission: 22 June 2015

Delivered at: Sydney

Delivered on: 22 June 2015

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitor for the Respondent: Mr David McLaren
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1272 of 2015

GE ZHANG

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 8 May 2015, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of a failure of the applicant to appear at today’s scheduled First Court Date hearing.

2. On 8 May 2015, the applicant filed his application seeking judicial review of a decision of the Migration Review Tribunal dated 15 April 2015. That application appears to have been signed by the applicant. I note that the Details of Filing of the application clearly states the time and location of today’s First Court Date hearing. 

3. In support the first respondent tendered two letters. The first was dated 22 May 2015 and marked Exhibit 1R. Exhibit 1R enclosed various documents by way of service upon the applicant and informed the applicant of today’s listing at 9.30 and provided the address and location of the courtroom. Exhibit 1R also informed the applicant that if the applicant did not appear at today’s scheduled listing, the first respondent may seek to have the matter dismissed with costs. I note that the date referred to in Exhibit 1R is the same as that provided by the Registry of the Court at the time of filing the application on 8 May 2015.

4. The first respondent sent a further letter, dated 2 June 2015, and marked Exhibit 2R. Exhibit 2R purports to give similar information and encloses by way of service the first respondent’s response. However, Exhibit 2R does erroneously inform the applicant that the matter is listed on 22 June 2016 at 9:30am, rather than 2015.

5. However, at 9:16am today an email was received by the Registry of the Court from the applicant in the following terms:

   “I have a case in court today. Unfortunately, I cannot attend as personal medicinal condition. Could I change to a new time.”

6. To the extent that this email is an application for adjournment, it is opposed by the first respondent. There is no medical certificate attached and there is not sufficient information in the email to explain why the applicant is unable to participate effectively in today’s court date. The email does not address the critical question of whether, and if so why, any medical condition would prevent the applicant from travelling to court and participating effectively in the court hearing today (see NAKX v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J).

7. In the circumstances, I am not satisfied that the applicant’s request for an adjournment is supported by sufficient evidence and it is therefore refused.

8. It is now 10:39am. There is no appearance by the applicant. There has been no further communication received from the applicant. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and, for whatever reason, has chosen not to attend.

9. I am satisfied that the order sought by the first respondent is appropriate.

10. Accordingly, the proceeding before this court, commenced by way of application filed on 8 May 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules, by reason of a 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: 6 July 2015