Akmal Thunku Ousmand v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 845

FEDERAL COURT OF AUSTRALIA

Akmal Thunku Ousmand v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 845

AKMAL THUNKU OUSMAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO V 504 OF 2004

HEEREY J
28 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V504 OF 2004

BETWEEN:	AKMAL THUNKU OUSMAND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	28 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Application be adjourned to a date to be fixed
2. Costs be reserved

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V504 OF 2004

BETWEEN:	AKMAL THUNKU OUSMAND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	28 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application filed on 26 April 2004 for an appeal for an application for leave to appeal against a decision of Phipps FM on 8 April 2004.  The applicant had sought review of a decision of the Migration Review Tribunal made at some earlier date, which does not appear on the papers before me. However, the magistrate dismissed the application because the applicant did not appear. 

2. The Magistrate’s reasons are not in writing, although I was told by counsel for the respondent that the Magistrate said that the medical certificate tendered by the applicant was unsatisfactory.  In any event, I do not think I can resolve this matter on the present state of the papers because the initial decision of the Migration Review Tribunal is not on the Court file and therefore I have got no way of deciding whether the applicant has any merits in his substantive case. 

3. The applicant did not apply under the Magistrates Court Rules for a rehearing, which he was entitled to do in circumstances where his case was dismissed for non‑appearance.  I think the best course is that he should now go to the Magistrates Court and attempt to have a rehearing.  The Magistrates Court can then consider whether he has an arguable case on the merits.  In the meantime, this application will be adjourned to a date to be fixed and I will reserve the costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            29 June 2004

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr T Mosby
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 June 2004
Date of Judgment:	28 June 2004