Ullah v Minister for Immigration

[2017] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

ULLAH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 242

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa Application – non-appearance at final hearing by Applicant – Application dismissed with costs pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: MD WASEL ULLAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1104 of 2016

Judgment of: Judge Dowdy

Hearing date: 15 February 2017

Date of Last Submission: 15 February 2017

Delivered at: Sydney

Delivered on: 15 February 2017

REPRESENTATION

No appearance by or for the Applicant.

Counsel for the Respondents: Mr M Glavac

Solicitors for the Respondents: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 5 May 2016 is dismissed for want of appearance at the final hearing today pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs of the proceeding in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1104 of 2016

MD WASEL ULLAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. On 5 May 2016, the Applicant filed an Application in this Court for judicial review of a decision of the Administrative Appeals Tribunal dated 6 April 2016 affirming a decision of a Delegate of the Minister, the First Respondent, refusing to grant to him a Student Temporary (Class TU) visa.   On 3 June 2016, the matter was set down for final hearing today at 10.15am, and there were other procedural orders made.  I came into Court at 10.18am this morning, having been told that there had not as at that time been an appearance by the Applicant. 

2. When I came into Court, Mr Glavac, who appears for the Minister, tendered an email and a medical certificate which have been marked Exhibit “A”.  The medical certificate is dated 14 February 2017 and is from a Doctor Alam.  In some respects it is a pro forma medical certificate which says in part that the Applicant “was/is unfit to continue his usual occupation/School/University/Court”.  I do not consider that this medical certificate gives a satisfactory explanation or excuse as to why the Applicant is not present or that it gives any reason which would suggest that he would not be able, if he were here, to meaningfully participate in the hearing. 

3. In response to that medical certificate and email from the Applicant, Messrs Clayton Utz sent a email to the Applicant on 15 February 2017 which told him that the Minister intended to proceed with the hearing today and that if he could not attend, the Minister wanted the hearing to be via telephone, and noted that the phone number on the Application filed on 5 May 2016 was 0416 957 244, as indeed it was. 

4. At Mr Glavac’s request, my Associate in Court rang that number but the response was that it had been disconnected. In those circumstances, I then had my Associate send an email at 10.41am to the Applicant at the email address appearing and given on his Application, and being the email address by which he had forwarded the email of 14 February 2017 to Messrs Clayton Utz enclosing the medical certificate. 

5. My associate’s email read:

   Dear Mr Ullah,

   Please urgently phone his Honour Judge Dowdy’s Associate on 0435 566 320 regarding the hearing of your application for judicial review in the Federal Circuit Court which is currently being heard.

6. It is now by the Court clock 11am and no response has been received to that email, a response by which I mean a telephone call from the Applicant to my Associate.  I have now had the matter called outside the Court three times and there is still no appearance by or for the Applicant.  I did offer to Mr Glavac the opportunity of hearing the case today and giving a further opportunity for the Applicant to appear within the next 14 and 21 days and make his submissions, but in the result, his instructions quite reasonably are that the Application be dismissed for want of appearance by the Applicant at his own case, namely the final hearing of his Application made to this Court. 

7. I regard it as entirely appropriate in the circumstances that the Application be dismissed. As I sit here with the knowledge I have, there are quite insufficient reasons for non-appearance by the Applicant today and so in the circumstances I order pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) that the Application filed by the Applicant on 5 May 2016 be dismissed as the Applicant is an absent party.

8. The Application must be dismissed with costs and the Minister asks for the relevant scale amount at the time the Application was filed, which is the sum of $6,825.  In the circumstances, the second order I make today is that the Applicant pay the First Respondent’s costs of the proceeding in the sum of $6,825.

Postscript

1. I record that after my return to Chambers from delivering the above judgment, I received from the Registry of the Court an email from the Applicant which, although bearing the time of 1.34pm on Tuesday 14 February 2017, was actually received by the Registry at 11.56pm on Tuesday night. The purport of the email from the Applicant was to seek an adjournment of the hearing of 15 February 2017 on the basis of certain ailments and it attached a copy of the same medical certificate from Dr Alam as had been sent to Mr Glavac, which is part of Exhibit “A”. In the body of the email, the Applicant recited the same ailments as he had informed Mr Glavac in his email to Clayton Utz. That being the case, there is no need for me to reconsider my exercise of discretion in dismissing the Application for the reasons given above, because of my view that in the circumstances no sufficient reason was shown for doing anything else but dismissing the Application because there was no sufficient evidence that the Applicant could not meaningfully participate in the scheduled hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 17 February 2017