El Hayeik v Minister for Immigration
[2005] FMCA 563
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL HAYEIK v MINISTER FOR IMMIGRATION | [2005] FMCA 563 |
| MIGRATION – Practice and procedure – application for judicial review of Migration Review Tribunal decision – application to dismiss pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where applicant did not appear. |
Federal Magistrates Court Rules 2001 (Cth), Rule 13.03A(c)
Migration Act 1958 (Cth), s.116(1)(g)
Migration Regulations 1994 (Cth), reg.1.20D(2)(f), 2.43(1)(l)
| Applicant: | YEHYA AHMAD EL HAYEIK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1871 of 2004 |
| Delivered on: | 27 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for non appearance of the applicant.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1871 of 2004
| YEHYA AHMAD EL HAYEIK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 9 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
17 September 2003 to cancel the applicant’s Temporary Business Entry (Class UC) (subclass 457) visa under s.116 of the Migration Act 1958 (Cth) (“the Act”) for failure of the sponsor to comply with undertakings.
Background
Mr El Hayeik is a citizen of Lebanon and was born on 8 September 1963. He is married with a wife and four children. Mr El Hayeik was granted a Class UC subclass 457 business visa on 17 May 2002 by the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). This visa was granted on the grounds of an employer sponsorship from A O Design Pty Ltd. The Department sent Form 1110 (Business Sponsor Monitoring) to A O Design Pty Ltd on
24 February 2003 but the Form was not returned to the Department.
A second Form 1110 was sent to A O Design Pty Ltd on 9 May 2003 and this Form was not returned to the Department. A O Design Pty Ltd had not complied with the undertaking it gave as the business sponsor in accordance with Form 1067. A O Design Pty Ltd had not cooperated with the Department in the monitoring of the sponsored person and for this reason A O Design Pty Ltd. For that reason A O Design no longer satisfied the requirements of Regulation 1.20D(2)(f) of the Migration Regulations 1994 (Cth) (“the Regulations”) (Court Book p.11) (“CB”).
On 16 September 2003 the Department attempted to contact Mr El Hayeik as he had not responded to the Notice of Intention to Consider Cancellation of his visa within the required time. Mr Alan Obaidi (the manager of A O Design Pty Ltd) stated that Mr El Hayeik was not at work and that he only saw Mr El Hayeik about once per month for a little bit of work. Mr Obaidi said that sometimes the period between when he saw Mr El Hayeik was even longer than one month and he did not see Mr El Hayeik often. The Department stated that A O Design Pty Ltd no longer satisfied Regulation 1.20D(2)(f) and that it had not advised the Department of any change in circumstance that may affect the company’s capacity to honour its sponsorship obligations (CB p.11).
A prescribed ground for cancellation of Mr El Hayeik’s Class UC subclass 457 visa existed pursuant to s.116(1)(g) of the Act and reg 2.43(1)(l) of the Regulations (CB p.12).
Reasons
This matter was listed for hearing at 10.15 a.m. but did not immediately proceed at that time because there was no appearance by the applicant. My associate contacted the applicant on the telephone numbers provided in the Court file to enquire of the applicant’s intention to attend Court. My associate spoke to the applicant who indicated that he had instructed a legal adviser who he understood would be appearing on his behalf. The applicant supplied contact details of his adviser but when contact was made it was evident that the adviser was a migration agent who had had discussions with the applicant but did not have instructions to retain a solicitor to appear on the applicant’s behalf for the Court hearing. The agent advised that the applicant’s intention had not been finally resolved and he was not in a position to proceed with the hearing of the matter.
The matter was called before me at 10.30 a.m. and I advised the respondent’s Counsel and solicitor as to the nature of the discussion that my associate had had with both the applicant and the migration agent.
In all the circumstances it seemed appropriate in the absence of the applicant I should dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) which is dismissal in default of appearance of a party. The applicant does not lose any substantive right by the dismissal. He is entitled to apply to the Court to vary or set aside the order if he wishes to do so. It is then a matter of discretion whether or not the Court will set aside or vary the orders.
I have been requested by Counsel appearing for the respondent to make orders for costs and I indicated I would do so. That, of course, forms part of the orders which the applicant, if he chooses, can apply to have set aside.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 4 May 2005
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