Mohamed v Minister for Immigration & Border Protection
[2015] FCCA 1739
•24 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMED v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1739 |
| Catchwords: PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 44.12 |
| Applicant: | ANWAR BATCHA MOHAMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3603 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2015 |
REPRESENTATION
| No appearance by or on behalf of the applicant. |
| Solicitor for the Respondents: | Ms Freda Taah (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3603 of 2014
| ANWAR BATCHA MOHAMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 24 December 2014, be dismissed by reason of the failure of the applicant to attend today’s scheduled hearing.
In support of the application, the solicitor for the first respondent tendered two letters; both on letterhead of the Australian Government Solicitor, and both addressed to the applicant at the applicant’s address for service in Australia. The first letter was dated 31 March 2015 and the second letter was dated 22 June 2015. Those documents together were marked as Exhibit 1R.
Both letters provide the details of the time, date and location of today’s hearing, and both letters inform the applicant that if the applicant failed to attend the hearing, orders may be sought to dismiss his application with costs.
On 19 March 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant confirmed he wished to continue with his application seeking judicial review of a decision of the Migration Review Tribunal, dated 24 November 2014, and handed down on 24 November 2014 (“the MRT”).
The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 17 June 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 17 June 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language, should he wish to take advice.
The matter was listed today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant, together with a copy of the costs schedule.
There has been no document filed by the applicant, either in accordance with those directions, or otherwise.
The matter was set down for hearing today at 9:30am. It is now 11:43am. The matter has been called outside on at least two occasions, the most recent being less than five minutes ago.
There has been no communication received from the applicant seeking an adjournment of today’s hearing or for any other reason.
The applicant’s originating application for judicial review, filed on 24 December 2014, stated the ground of review as follows:
“1. The made errors by declaring “against the facts” that I did not have an approved sponsor at the time of the application. In fact I had sponsor at the time of the application at the department, at the time of the application at MRT and the at the time of the decision made by the MRT.”
(Errors in original.)
In relation to that ground, I accept as accurate submissions filed by the first respondent, which state as follows:
“22. The applicant’s ground is misconceived. The Tribunal’s finding that he did not have an approved sponsor when he applied for review to the Tribunal on 16 April 2014 was not only open to it, but it was the only conclusion that it could possibly have reached. The material before the Tribunal established that:
i. the applicant had an approved sponsor at the time of visa application, namely Mums Recipes
ii. on 11 December 2013, Mums Recipes withdrew its nomination of the applicant
iii. some 7 months after the applicant lodged his application for review, on 10 November 2014, Darby Raj lodged a nomination application, which named the applicant as the nominee.
23. Crucially, there was no evidence before the Tribunal that the applicant had an approved sponsor at the critical date for the purposes of s 338(2)(d)(i) of the Act, that is, on 16 April 2014.
24. Insofar as the applicant may be under the impression that he had an approved sponsor at the time of the review application and that sponsorship is continuing, the evidence before the Tribunal did not establish this. Whilst Darby Raj’s approval as a standard business sponsor was in effect at the time of the application for review to the Tribunal the applicant was not nominated by Darby Raj until 10 November 2014, being after the date of application to the Tribunal. There was no information before the Tribunal indicating that the applicant had an approved nomination at the time of the application to the Tribunal. Further, no application of the type described in s 338(2)(d)(ii) had been made, or could not have been made, given that no decision had been made not to approve the sponsor. The applicant’s circumstances therefore did not fall within s 338(2)(d)(ii).
25. The Tribunal expressly considered the relevant legislative provisions and relevant facts in its reasons in determining that it had no jurisdiction. The Tribunal’s application of the legislative provisions in this case is not controversial: see Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46 (followed in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881) and Farooq v Minister for Immigration & Citizenship [2008] FCA 946.”
In the circumstances, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.
I am satisfied that the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 24 December 2014, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 July 2015
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