Iftakherullah v Minister for Immigration

[2008] FMCA 436

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IFTAKHERULLAH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 436

MIGRATION – Visa – protection visa – Refugee review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – where applicant did not attend Federal Magistrates Court hearing.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: SHAH MOHAMMAD IFTAKHERULLAH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2549 of 2007

Judgment of: Scarlett FM

Hearing date: 4 March 2008

Date of last submission: 4 March 2008

Delivered at: Sydney

Delivered on: 4 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: No appearance by the applicant

Appearance for the Respondent: Ms Anniwell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to Rule 13.03A(c) due to the non-attendance by the applicant at the hearing.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2549 of 2007

SHAH MOHAMMAD IFTAKHERULLAH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant in this case has asked for judicial review of a decision by the Migration Review Tribunal to affirm the decision not to grant the applicant the Skilled Independent Overseas Student (Residents) (Class DD) Visa.

2. Unfortunately, the applicant has not attended Court today.

3. The applicant filed his application and affidavit in support on
   17^th August 2007.  On 10^th September 2007, directions were made for this, the application for hearing.

4. The application was listed for final hearing at 10:00 a.m. on
   14^th November 2007.  However, the applicant sought an adjournment because he had parted company with his legal advisor and was seeking other legal representation.

5. The application was then listed for final hearing on 26^th March 2008 but, due to a clash of commitments, I made arrangements to bring the application forward for mention to 25^th February 2008.  The applicant was advised of the date but did not attend Court.  On that occasion, the solicitor for the Minister, Ms Anniwell appeared and I listed the application for final hearing at 11:30 a.m. today.

6. The applicant was informed in writing by the Court and I am satisfied that the solicitors for the Minister wrote to the applicant on
   25^th February advising him that the application had been listed for hearing today.  A copy of the letter forwarded by the solicitor to the applicant has been tendered in evidence and I am satisfied that the applicant has been made fully aware of the time, date and place of the hearing.  He has not attended Court.  He has not sent any message to the Court indicating that he has been hindered or prevented or delayed from attending Court.

7. I called the matter at 11:35 a.m. and the applicant did not appear. 
   I stood the matter down until 11:57 a.m.  My associate checked to make sure no phone message or fax message had been received from the applicant advising of any delay due to any emergency.  No message has been received.

8. The applicant was called three times outside the Court at 11:57 a.m. and still did not answer the call.

9. The solicitor for the first respondent Minister seeks an order for costs in the sum of $5,000.00.  This is an appropriate matter for a costs order.  The solicitors for the Minister have prepared the matter on the basis that it was a full, final hearing.  They have attended Court on each occasion when the matter has been before the Court and I am satisfied that they have taken the appropriate steps to defend the application had the applicant attended Court today.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  20 March 2008