Chen v Minister for Immigration & Citizenship No 2 [2007] FCA 958

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Citizenship No 2 [2007] FCA 958

Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 cited ZI CHEN v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR NSD422 OF 2007

EMMETT J

30 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD422 OF 2007

BETWEEN: ZI CHEN

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 30 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application filed on 19 March 2007 be dismissed. 2. The applicant pay the first respondent's costs in the sum of $4200. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD422 OF 2007

BETWEEN: ZI CHEN

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 30 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 9 May 2007 an application for extension of time to file and serve a notice of appeal was listed before me for hearing. On that day I directed that the applicant file a further draft notice of appeal specifying as a ground that the Federal Magistrates Court erred in rejecting the grounds set out in the applicant's application to that Court, which was filed on 2 March 2006. I directed that the further draft notice of appeal be filed and served no later than 23 May 2007, together with written submissions in support of the ground. I adjourned the application for extension of time for further hearing today. I also directed that, if an extension of time were granted, the appeal be heard today. 2 I gave reasons on 9 May 2007 for making those directions. As I then indicated, I did not consider that there was any substance in the ground relied on in the existing draft notice of appeal. However, I expressed some concern as to the effect of the decision of the Federal Magistrates Court concerning the operation of Migration Amendment Regulations 2005 (No 8) (Amendment No 8). When the matter was called on for hearing today there was no appearance for the applicant and the Minister has, therefore, asked that the application for extension of time be dismissed. That is inevitable in the circumstances. 3 In the reasons that I gave on 9 May 2007, I indicated that I did not consider that there was any error in the reasons of the Federal Magistrates Court. However, because I had not had the advantage of detailed submissions on the question, I adjourned the application for three weeks, in order to give the applicant the opportunity of obtaining legal advice, filing a further draft notice of appeal and making written submission. Since the earlier hearing, my attention has been drawn to a decision of the Full Court given on 11 May 2007 concerning the operation of the relevant regulations: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69. The reasons of the Court in that proceeding tend to support views that have been expressed by judges of the Federal Magistrates Court concerning the operation of Amendment No 8. 4 As I indicated on 9 May, it is perhaps bad luck for the present applicant that his visa was cancelled only shortly before the Regulations were amended. Under the regime that exists, following the amendment, the decision-maker would have a discretion to take into account the circumstances of the applicant that led to his failing to satisfy Condition 8202. However, the language of the transitional provisions is unequivocal. As at the date of the Tribunal's decision, the visa in question had been cancelled. It follows, therefore, that the decision of the Federal Magistrates Court in this proceeding was correct. There is no arguable case that could have been advanced in an amended notice of appeal. There would be no utility in extending the time for filing a notice of appeal. In the circumstances the application must be dismissed with costs. 5 The solicitor for the Minister has asked that I fix the amount of the costs in the sum of $2,400. That is somewhat higher than would normally be expected in relation to an application for an extension of time. The Minister's solicitor assures me that the actual costs exceed that sum. The sum is justified by the nature of the claims made by the applicant in his application for extension of time. That is to say, he asserted that there was a denial of procedural fairness on the part of the Tribunal. That required the Minister to make inquiries and to file evidence, including evidence consisting of the transcript of the proceeding before the Federal Magistrates Court. 6 In addition, there have been two hearings. To some extent the Court is responsible for that, for the reasons indicated on 9 May 2007. However, the applicant was given the opportunity of an adjournment with the warning that additional costs may be incurred. In all of the circumstances I consider it is appropriate to fix the costs in the sum of $4,200.