Elboray v Minister for Immigration

[2016] FCCA 2710

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELBORAY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2710

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) – no appearance by the applicant – application of r.13.03C(1)(c) of the Federal Circuit Court Rules – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Federal Circuit Court Rules 200, r.13.03C(1)(c).

Applicant: KHALED ABDELWANIS ELBORAY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1667 of 2016

Judgment of: Judge Street

Hearing date: 20 October 2016

Date of Last Submission: 20 October 2016

Delivered at: Sydney

Delivered on: 20 October 2016

REPRESENTATION

Solicitors for the Respondents:

Ms M Ibrahim

HWL Ebsworth Lawyers

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1667 of 2016

KHALED ABDELWANIS ELBORAY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) (“the Act”) within the Court’s jurisdiction in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 may 2016 affirming the decision of the delegate not to grant a Student (Temporary) (Class TU) visa.

2. On 25 August 2016 the Registrar of the Court made orders fixing the matter for hearing today at 2.15 pm. The matter has been called outside the court and the applicant has failed to appear. 

3. The first respondent has moved under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 for the application to be dismissed.  The first respondent has tendered correspondence, which has been marked

   
   

   “Exhibit A”, dated 13 October 2016, sent to both the applicant’s residential address and email address as identified on the initiating application in the proceedings in this Court. No explanation for the absence of the applicant has been provided to the first respondent.

4. It is now past 2:30pm and the applicant has failed to appear. I am satisfied that the applicant was aware of the hearing date. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

5. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 November 2016