Raza v Minister for Immigration

[2016] FCCA 205

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAZA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 205

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no appearance by Applicants.

Legislation:
Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

First Applicant: SYED NADEEM RAZA

Second Applicant: SHAZIEH NADEEM

Third Applicant: SYED ALI JEE HASSAN RAZA

Fourth Applicant: SYEDA SUKAINA NADEEM RAZA

Fifth Applicant: SYED MUHAMMAD ALI SHANAWAR RAZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2873 of 2014

Judgment of: Judge Barnes

Hearing date: 1 February 2016

Delivered at: Sydney

Delivered on: 1 February 2016

REPRESENTATION

The Applicants: No Appearance

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Order 1 made on 28 October 2014 be varied to read “Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the First Applicant is hereby appointed litigation guardian for the Third Applicant”.

2. There being no appearance by the Applicants, the application filed on 16 October 2014 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules.

3. The First, Second, Fourth and Fifth Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2873 of 2014

SYED NADEEM RAZA

First Applicant

SHAZIEH NADEEM

Second Applicant

SYED ALI JEE HASSAN RAZA

Third Applicant

SYEDA SUKAINA NADEEM RAZA

Fourth Applicant

SYED MUHAMMAD ALI SHANAWAR RAZA

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) made on 19 September 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Distinguished Talent (Residence) (Class BX) visas.  

2. The Applicants sought review by application filed in this court on 16 October 2014.  At that time they were legally represented.  Consent orders were made on 28 October 2014 in terms sought by the legal representatives for the parties including the usual directions and listing the matter for hearing.  In addition it was ordered by consent that the First Applicant be appointed litigation guardian for the Third, Fourth, and Fifth Applicants. 

3. Subsequently the matter was adjourned on the application of the solicitors for the Applicants and listed for hearing today.  The parties’ solicitors were advised in September 2015 that the matter was listed for hearing today at 10:15am in Court 13.2, level 13, 80 William Street.  This was a change from the original place for hearing in John Maddison Tower.

4. However the Applicants’ solicitors filed a notice of intention to withdraw as lawyers on 12 January 2016 and a notice of withdrawal of lawyer on 20 January 2016. 

5. In the notice of intention to withdraw filed by the former solicitor for the Applicants, the Applicants were advised, among other things, that the case was next listed before the court in Court 13.2, level 13, 80 William Street today at 10.15 am. 

6. There was, however, no appearance by or on behalf of any of the Applicants at the time the matter was listed for hearing or now, over 30 minutes after the time the matter was listed.  Nor is there any evidence of any contact by or on behalf of the Applicants to explain their non-appearance.

7. In these circumstances, the Minister seeks that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The change to the date and venue of the hearing was notified to the legal representatives for the Applicants. I am satisfied that the Applicants were in this way put on notice of the time, date, and place of the hearing. As indicated, the Applicants’ former lawyers informed the Applicants of the time, date, and place of the hearing in the notice of intention to withdraw.

8. I consider it appropriate to dismiss the application for non-appearance.  I note in that respect that if there is any legitimate explanation for the Applicants’ failure to appear, it is open to them to seek to reinstate their application (r.16.05).

9. Counsel for the Minister indicated that while the original consent orders had appointed the First Applicant litigation guardian for the Third, Fourth, and Fifth Applicants at an early stage in the proceedings, before a court book was filed and at the request of the parties, it was apparent from the material in the court book (including relevantly the letter accompanying the original protection visa application from the former solicitors for the Applicants), that only the Third Applicant was and remains a minor in need of a litigation guardian.  The Fourth and Fifth Applicants were, at all relevant times, adults. 

10. In these circumstances, it is appropriate to amend order 1 made on 28 October 2014 removing the appointment of the First Applicant as litigation guardian for the Fourth and Fifth Applicants and that a costs order should be made against the First, Second, Fourth, and Fifth Applicants. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  8 February 2016