ISLAM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 238

MIGRATION – Review of Migration Review Tribunal decision – cancellation of an education visa – dismissal of judicial review application because of the applicant’s non attendance.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: MD TARIQUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2406 of 2011

Judgment of: Driver FM

Hearing date: 26 March 2012

Delivered at: Sydney

Delivered on: 26 March 2012

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2406 of 2011

MD TARIQUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 21 October 2011 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”)  made on 23 September 2011.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s subclass 572 vocational education and training sector visa.  The visa was cancelled because of the failure of the applicant to comply with condition 8202 attached to that visa.

2. The matter came before me for first court date directions on 22 November 2011.  At that time, a barrister appeared on behalf of the applicant, but advised the Court that he may not be in a position to continue in the case.  I made directions for the filing of additional material and for a final hearing on the application today at 2.15pm.  Nothing further has been filed on behalf of the applicant.  Further material was filed on behalf of the Minister.

3. The affidavit of Sheaj Sayers made on 23 March 2012 deposes as to the service of the Minister’s submissions with a covering letter dated 16 March 2012.  That letter advised the applicant that if he did not attend court at the scheduled time, the Minister may seek to have the matter dismissed with costs for non-appearance. 

4. Two attempts have been made to contact the applicant by telephone, on the number provided by the applicant, prior to me coming on the bench today.  Both attempts by the solicitor for the Minister and my deputy associate were unsuccessful.  The mobile telephone was turned off.  The applicant has not appeared at the schedule time and there is no explanation for his non-attendance.  The matter has been called twice. 

5. In the circumstances, I have decided to grant a request made on behalf of the Minister that the application be dismissed for default of appearance of the applicant, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). I so order.

6. In consequence of that dismissal, the Minister also seeks an order for costs fixed in the sum of $5,000.  I accept that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party-and-party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000. 

7. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served upon the applicant by prepaid post at his last known address for service.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  30 March 2012