Pabani v Minister for Immigration & Multicultural Affairs

[2000] FCA 1193

FEDERAL COURT OF AUSTRALIA

Pabani v Minister for Immigration & Multicultural Affairs [2000] FCA 1193

AZIZ PABANI, AKBAR ALI DAWOOD PABANI, SHIREEN PABANI AND
SHIRIN PABANI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 668 of 2000
N 669 of 2000

HILL J
21 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 668 OF 2000

BETWEEN:

AZIZ PABANI,  AKBAR ALI DAWOOD PABANI,
SHIREEN PABANI
(N 668 of 2000)

SHIRIN PABANI
(N 669 of 2000)

APPLICANTS

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HILL J

DATE:

21 AUGUST 2000

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court are two applications, the first by Mr Aziz Pabani and the second by Ms Shirin Pabani to review decisions of the Migration Review Tribunal affirming decisions of a delegate of the Minister for Immigration and Multicultural Affairs refusing in each case to grant a Change in Circumstance (Residence) (Class AG) Subclass 806 visa.  Both of the applicants were invited to attend hearings before the Tribunal at times scheduled but advised the Tribunal that it should make a decision based on the evidence in the files.

2. When the decision was made it was adverse to them. The reasons why the review was in each case refused by the Tribunal were the same, criterion 3002 of Schedule 3 to the Migration Regulations 1994 provides that the applicant must apply within 12 months of the expiry of the last substantive visa held for a further visa. In each case the evidence that that criterion was not there. Neither applicant had held a substantive visa other than the bridging visa since 3 June 1996, each had lodged an application for a visa on 30 July 1998, that is to say, more than 12 months since the expiry of the last substantive visa.

3. The Tribunal held that it had no discretion to waive criterion 3002 and accordingly affirmed the decision under review.  Each of the applicants has applied to this Court for review under the provisions of the Migration Act 1958 (Cth). The matter came before the Court on 31 July 2000, there was no appearance for the applicants when the matters were called. I stood each matter over until this morning with a direction that the respondent Minister notify the applicants of the adjourned hearing and advise them that, if they did not attend, consideration would be given to each application being dismissed.

4. When the matter came on for directions this morning the applicants again were not present.  It is clear from a reading of the Tribunal’s decision that the Tribunal did not err in law in arriving at its decision in each case.  It is also clear that the applicants, by failing to turn up, have indicated the way in which they see their possibility of success.  Whether or not this is so, when an applicant twice does not turn up, as in the present proceedings, the appropriate order, particularly where their application appears to have no prospect of success, is to dismiss it.

5. I order each of the applicants to pay the Minister’s costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             21 August 2000

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 August 2000
Date of Judgment:	21 August 2000