Ting v Minister for Immigration & Multicultural Affairs [2006] FCA 1209

FEDERAL COURT OF AUSTRALIA

Ting v Minister for Immigration & Multicultural Affairs [2006] FCA 1209

MIGRATION – application to reinstate proceeding previously dismissed for want of prosecution – application for extension of time in which to file notice of appeal – student visa – whether breach of condition 8202 – whether reasonable prospects of establishing jurisdictional error by Tribunal. HELD – application to reinstate proceedings refused. WEI-MIN TING v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL SAD 213 of 2005 MANSFIELD J 11 SEPTEMBER 2006 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIADISTRICT REGISTRY SAD 213 OF 2005

BETWEEN: WEI-MIN TING

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 11 SEPTEMBER 2006

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The order sought on the applicant's notice of motion of 9 November 2005 is refused. 2. The applicant pay to the first respondent her costs of the notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIADISTRICT REGISTRY SAD 213 OF 2005

BETWEEN: WEI-MIN TING

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE: 11 SEPTEMBER 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 By application made on 8 September 2005, Mr Ting sought an extension of time in which to file and serve a notice of appeal from a decision of a Federal Magistrate given on 9 August 2005. Mr Ting did not appear on 14 October 2005 when the application was first listed for hearing, and it was dismissed for want of prosecution. I directed that that order not be sealed for a period of time, to give Mr Ting an opportunity to re-instate the application if his non-attendance was for some satisfactory reason. 2 By motion of 9 November 2005, he applied to reinstate the application. The application and the motion have been adjourned from time to time at the request of the parties, or one or other of them. It is not necessary to go into the reasons why that has occurred. 3 Both the motion and, if it is re-instated, the application, are listed for hearing together. It was accepted that they should be heard together, because in substance the outcome of one would dictate the outcome of the other. It was also accepted that the relevant considerations to determine those matters include the length and reasons for the delay, and whether there is any real prospect of an appeal succeeding: see, e.g. Jess v Scott (1986) 12 FCR 187 at 195. 4 Under O 52 r 15(1)(a) any appeal from the decision of the Federal Magistrate had to be commenced within 21 days after judgment, namely 30 August 2005. The application was brought only some 9 days after that. The Minister does not suggest that the delay has caused her any prejudice. There is no evidence to explain why the proposed appeal was not instituted within time, but given the shortness of the delay, I do not think the delay weighs heavily against the application if it is shown to have arguable merit. Mr Ting's failure to attend the hearing on 14 October 2005 was because he had misplaced the application on which the hearing date was shown, and he had not received correspondence to his address for service as he had moved.