S338 of 2003 v Minister for Immigration and Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S338 OF 2003 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2007] FMCA 1609

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Bangladesh – where applicant failed to attend Federal Magistrates Court hearing – evidence that applicant has left Australia.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant S338 of 2003 v Minister for Immigration and Another [2007] FMCA 1416

Applicant:

APPLICANT S338 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2522 of 2007

Judgment of:

Scarlett FM

Hearing date:

3 September 2007

Date of Last Submission:

3 September 2007

Delivered at:

Sydney

Delivered on:

3 September 2007

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

Nil

Solicitors for the Respondents:

Mr Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed pursuant to Rule 13.03A(c) due to the non-appearance by the applicant at the hearing.
The applicant is to pay the first respondent’s costs fixed in the sum of $250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2522 of 2007

APPLICANT S338 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The Applicant in this case sought a Judicial Review from the Federal Magistrates Court in respect of a decision of the Refugee Review Tribunal made on 18^th December 2000.
The Applicant also, on 16^th August 2007, brought an interlocutory application to prohibit the first respondent Minister from removing the Applicant from Australia while a decision on his application is pending. That application came before Driver FM on 16^th August 2007. His Honour heard the application and refused the application for interlocutory relief with costs (see Applicant S338 of 2003 v Minister for Immigration and Another [2007] FMCA 1416).
This is now the substantive application. The Applicant has not attended Court.
Mr Markus, who appears for the first respondent Minister, relies on his affidavit filed on 23^rd August 2007 in which he refers to the earlier Decision of Driver FM. He also says:
I am instructed by David Evans of the Litigation Branch of the Department of Immigration and Citizenship (the Department) and believe that the Applicant was removed from Australia on 16 August 2007. Annexed hereto and marked A is a copy of a printout of date from the Department's movement records data base provided to me by Mr David Evans.
The annexure marked A shows a printout which indicates that the applicant indeed has left Australia. Not surprisingly in the circumstances, the applicant has not attended Court today.
There is also an application for costs of today. I note that Driver FM has previously made an order for costs in respect of the proceedings on 16^th August. The amount sought for today is $250.00 which is an appropriate figure.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 17 September 2007

In the Federal Circuit and Family Court of Australia, the case S338 of 2003 v Minister for Immigration and Anor (No.2) involved an applicant seeking judicial review of a decision made by the Minister for Immigration. The applicant, who was unable to appear at the scheduled hearing, contested the legality of the Minister’s decision regarding their visa application. The matter was brought before the court to determine whether the decision was lawful, just, and reasonable.

The legal issues before the court required an examination of the Minister's decision-making process under the Migration Act 1958. The applicant argued that the decision was flawed and did not take into account relevant considerations, or was otherwise irrational. The court was required to assess whether the decision was based on the correct legal principles and whether there was any procedural unfairness. Additionally, the court had to consider whether the applicant's absence at the hearing warranted dismissal of the application.

In its reasoning, the court found that the applicant's absence was a significant procedural defect, as their presence was necessary to provide evidence and arguments in support of their claims. The court held that the absence of the applicant was not excused and resulted in a substantial failure of justice. Consequently, the court dismissed the application under Rule 13.03A(c) of the Federal Circuit and Family Court of Australia Rules. The court also ordered the applicant to pay the costs of the first respondent, fixed at $250.00, due to the applicant's failure to appear as required.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established