TARIQ v Minister for Immigration

[2015] FCCA 2585

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARIQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2585

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c).

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c),

Migration Act 1958 (Cth), s.476

Applicant: ZEESHA TARIQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 44 of 2015

Judgment of: Judge Street

Hearing date: 17 September 2015

Date of Last Submission: 17 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the Respondents: Mr French

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $6000.

NOTATION:

Please note that Order 2 has been amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 44 of 2015

ZEESHA TARIQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 January 2015 affirming a decision of the delegate not to grant the applicant’s Student (Temporary) (Class TU) visa. The matter was fixed for hearing today at 2.15 pm, and the applicant has been called outside the Court, and the applicant has not appeared. The matter was fixed for hearing on 29 April 2015, pursuant to consent orders which had been signed by the applicant.

2. It is clear that the applicant was aware of the hearing date and had communicated a request for an adjournment.  That request had been declined by the Court, and the applicant has failed to appear.  The Court is satisfied the applicant was well alive to the hearing date listed for today.  Mr French of counsel has moved for dismissal under r.13.01C(1)(c).  I do not regard the applicant’s assertion of not being physically well enough to attend Court in the absence of any medical evidence or a proper application supported by affidavit to be in any way satisfactory, particularly given that the applicant was notified on 15 September that the matter would be heard today at 2.15 pm. 

3. This Court does have a heavy caseload and is entitled to take into account case management considerations in respect of applications for adjournment, proper grounds must be made out where a matter has been fixed for hearing.  The communication in the present case is of a vague, general kind, in which the applicant asserts he is on medication and doctors have advised him to have rest for some time because he has a kidney stone and that there is some possibility of some operative procedure taking place. 

4. The vague generalisations and the failure to provide any medical evidence in support of an inability to attend Court are relevant considerations. It is in these circumstances I am satisfied that this is an appropriate case to exercise the Court’s jurisdiction under r.13.03C(1)(c) and to dismiss the application. The application is dismissed under r.13.03C(1)(c).

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015