Mohammed v Minister for Immigration and Border Protection

[2015] FCCA 463

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 463

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & 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:

Migration Act 1958 (Cth) ss.412, 494C
Federal Circuit Court Rules 2001 (Cth) r.13.03C
Migration Regulations 1994 (Cth) reg.4.31

Applicant: FASATHULLAH MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2815 of 2013

Judgment of: Judge Emmett

Hearing date: 24 February 2015

Date of Last Submission: 24 February 2015

Delivered at: Sydney

Delivered on: 24 February 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the First Respondent: Ms Svetlana Zarucki
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2815 of 2013

FASATHULLAH MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 13 November 2013, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend this morning’s scheduled hearing.

2. In support, the first respondent’s solicitor, Ms Zarucki, read the affidavit of Steven John Alfred Speirs, sworn 17 February 2015 and filed on that date.

3. Mr Speirs’s affidavit annexes a screenshot of the Department of Immigration and Border Protection’s “Integrated Client Services Environment” internal database (“Annexure A”), which records the movement and entry of persons in and out of Australia. I accept that Annexure A discloses that the applicant arrived in Australia on 20 February 2008 on a Student TU visa and departed Australia on 3 September 2014, whilst holding a bridging visa.

4. Orders were made by me in chambers by consent on 6 March 2014 giving leave to the applicant to file and serve an amended application, any further evidence by way of affidavit and submissions in support of his application. The matter was set down for hearing today at 10:15am, before me.

5. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and I am further satisfied that the applicant departed Australia on 3 September 2014. I further accept that, whilst holding a bridging visa on 3 September, the applicant is not entitled to return to Australia unless granted another visa.

6. In the circumstances, the orders sought by the first respondent are appropriate and the proceeding before this Court should be dismissed pursuant to r.13.03C(1)(c) of the Rules with costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate:

Date: 4 March 2015