Debnath v Minister for Immigration

[2014] FCCA 1418

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEBNATH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1418

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of student visas – dismissal of show cause application on account of the non attendance of the applicants.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

First Applicant: MALOY BIKASH DEBNATH

Second Applicant: SUMAIRA RAHMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1127 of 2014

Judgment of: Judge Driver

Hearing date: 3 July 2014

Delivered at: Sydney

Delivered on: 3 July 2014

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents:

Ms C Hillary

DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs 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 applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1127 of 2014

MALOY BIKASH DEBNATH

First Applicant

SUMAIRA RAHMAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a judicial review application filed on 24 April 2014 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 3 April 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants temporary student visas on the basis that the principal visa applicant (Mr Debnath) was not enrolled in a course of study. 

2. The matter was listed today for a first court date on the application.  The review applicants have not appeared today when the matter was called.  The matter was called twice and on each occasion there was no answer to the call.  There is no explanation for the applicants’ non-attendance.  An attempt by the Minister’s solicitor to contact Mr Debnath by telephone was unsuccessful

3. I note that today’s first court date is a variation on that marked on the application itself, however, there is no indication that the applicants attended court on the earlier return date and they have been informed both by the Court and by the Minister’s solicitors of the court fixture today.  Exhibit R1 is a letter dated 15 May 2014 to Mr Debnath at his nominated address for service confirming the hearing today at John Maddison Tower at 9.30am and warning him that if he failed to attend, the Minister would seek to have the application dismissed with costs for non appearance.

4. The Tribunal decision is a simple one.  The application, as currently framed, is an invitation for the Court to engage in merits review.  Given the failure of the applicants to attend today’s directions hearing, the lack of any explanation for that non-attendance and the fact that they have been warned that a failure to attend may lead to a dismissal of the application, I have concluded that the appropriate course is to dismiss the application on account of the non-attendance of the applicants.

5. I will so order.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale in the sum of $1,331.  I will make that costs order. 

7. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served on the applicants by ordinary pre-paid post at their last known address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 July 2014