Hasan v Minister for Immigration and Citizenship

[2007] FCA 135

FEDERAL COURT OF AUSTRALIA

Hasan v Minister for Immigration and Citizenship [2007] FCA 135

MOHAMMED MAHMUDUL HASAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 1815 OF 2006

LANDER J
15 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1815 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMED MAHMUDUL HASAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	15 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent be changed to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs fixed at $1,000.

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	NSD 1815 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMED MAHMUDUL HASAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	15 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant has appealed against an order made in the Federal Magistrates Court dismissing the appellant’s application for judicial review.

2. On 26 July 2004 a delegate of the first respondent decided to cancel the appellant’s Subclass 572 (Vocational Education and Training Sector) visa because of the appellant’s failure to comply with condition 8105 which attached to that visa.

3. On 28 July 2004 the appellant applied to the Migration Review Tribunal (‘the Tribunal’) for a review of that decision.

4. Condition 8105 provides that the visa holder must not engage in work in Australia for more than 20 hours per week during any week when the holder’s course of study or training is in session.

5. The Tribunal found that the appellant had worked for greater than 20 hours in seven separate weeks.

6. Section 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) empowers the Minister to cancel a visa where the Minister is satisfied that the visa holder has not complied with condition 8105 attaching to the appropriate visa. The Tribunal therefore affirmed the delegate’s decision.

7. The appellant applied to the Federal Magistrates Court for a judicial review of the Tribunal’s decision.

8. On 31 August 2006 the Federal Magistrate dismissed the appellant’s application for judicial review.

9. On 19 September 2006 the appellant filed a notice of appeal from that order.

10. When the matter was called on this morning the appellant failed to attend.  The appellant was called in the precincts of the Court.

11. The first respondent’s solicitor tendered an affidavit which established that the appellant departed Australia on 20 November 2006.  When he left Australia, the appellant was the holder of a Bridging WE (Subclass 050) visa which does not permit the appellant to re-enter Australia.

12. Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) empowers a single judge or the Full Court to order that an appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal.

13. The first respondent asked me to make such an order.  In view of the information which has been provided to me in the affidavit to which I have referred, such an order would be appropriate.

14. I make the following orders:

    1.The title of the first respondent be changed to Minister for Immigration and Citizenship.

    2.The appeal be dismissed.

    3.The appellant pay the first respondent’s costs fixed at $1,000.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        15 February 2007

Counsel for the Appellant:	The Appellant did not appear
Counsel for the First and Second Respondents:	Ms E Palmer
Solicitor for the First and Second Respondents:	Clayton Utz
Date of Hearing:	15 February 2007
Date of Judgment:	15 February 2007