Hossain v Minister for Immigration

[2016] FCCA 577

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 577

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal to cancel applicant’s Subclass 856 visa.

PRACTICE AND PROCEDURE – Where evidence before Court that applicant has left the country and no longer has legal representation – Failure to appear at nominated hearing – Application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: AMIR HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3191 of 2014

Judgment of: Judge Dowdy

Hearing date: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

The Applicant: The Applicant did not appear.

Solicitor for the First Respondent: Ms H Musgrove of Sparke Helmore

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. Pursuant to Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth), the present second named respondent’s name be amended from Migration Review Tribunal to Administrative Appeals Tribunal.

2. The application filed in this proceeding on 17 November 2014 be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs of the proceeding, fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3191 of 2014

AMIR HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

1. This matter was set down for final hearing today, as long ago as 13 January 2015.  There is evidence before the Court that on 16 February 2016, the applicant departed Australia.  On 19 February 2016, the applicant’s solicitor, Mr Abu Siddque, filed a Notice of Intention to Withdraw as Lawyer.  On 22 February 2016, the first respondent asked the Court to relist the matter for directions.  And on that date I did relist the matter for directions and mention on Friday, 26 February 2016.  On that date, Mr Keevers appeared for the first respondent, and I excused the first respondent from filing any written submissions because it seemed likely that the applicant would not appear today.

2. On 26 February 2016, the matter was mentioned before me in open court, when Mr Keevers appeared in person and Mr Siddque appeared on the telephone.  Mr Keevers asked me to vacate the hearing date on the basis that it was unlikely that the applicant would appear today.  However, in the circumstances, and having regard to the fact that we only had to wait a few more days, I thought it better that the final hearing date of today be maintained.  

3. Today Ms Musgrove has appeared for the first respondent.  The applicant has been called outside court three times by my associate and there is no appearance by the applicant. 

4. Accordingly, the Court makes the following orders:

   1. Pursuant to Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth), the present second named respondent’s name be amended from Migration Review Tribunal to Administrative Appeals Tribunal.

   2. The application filed in this proceeding on 17 November 2014 be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

   3.  The applicant pay the first respondent’s costs of the proceeding, fixed in the amount of $5,800.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 3 March 2016