Zafar v Minister for Immigration

[2015] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAFAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 660

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – no appearance by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: SYED NABEEL ZAFAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 542 of 2014

Judgment of: Judge Nicholls

Hearing date: 3 March 2015

Date of Last Submission: 3 March 2015

Delivered at: Sydney

Delivered on: 3 March 2015

REPRESENTATION

Applicant: No Appearance

Solicitors for the Respondents: Ms N Senanayake of DLA Piper Australia

ORDERS

1. The application made on 6 March 2014 and amended on 14 August 2014 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 542 of 2014

SYED NABEEL ZAFAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 March 2014 and amended on 14 August 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 February 2014, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. When the matter was called outside the Court today both at 10.15am and at 10.35am, there was no appearance by the applicant. The Minister, in these circumstances, has applied for the application to be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for non-appearance.

3. At the time of application on 6 March 2014, the applicant was represented by a firm of solicitors who had conduct of the case, and who filed a number of documents on behalf of the applicant.  A solicitor from this firm had previously attended Court.  However, on 17 February 2015, the applicant’s solicitors filed a Notice of Withdrawal as a Lawyer on behalf of the applicant. I note that that notice asserts that the solicitor no longer acts for the applicant. I have had regard to paragraph 3 of the Notice, which states that a notice of the intention to withdraw was served on the applicant seven days before the filing of the notice, and it was served at the applicant's last known residential address. 

4. I have before me the affidavit of Vanessa Sarah Page, affirmed on 2 March 2015, which has two relevant annexures, “A” (a letter from the first respondent to the applicant enclosing written submissions and reminding of the Court event) and “B” (copy of courier information). I am satisfied on that evidence that the Minister wrote to the applicant at the last known address of the applicant, putting him on notice of the Court event today and providing him with the relevant time and location.  I am also satisfied on the evidence, that that notification was served on the applicant by courier at the last known address for service.  Further, I am satisfied that the applicant had reasonable notice of the Court event today.

5. When the matter was called today, the applicant did not appear.  I note now that it is some 25 minutes after the scheduled hearing time.  There has been no communication to the registry of this Court to seek any adjournment of the hearing today and no notification of any difficulty in attending today. The applicant’s absence remains unexplained.

6. In all the circumstances, I am satisfied that the Minister’s application for dismissal in the absence of the applicant should be granted. I will make the order accordingly.

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

Associate: 

Date:  23 March 2015