Zaidi v Minister for Immigration

[2005] FMCA 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZAIDI  v MINISTER FOR IMMIGRATION [2005] FMCA 331

MIGRATION – Review of MRT decision – where applicant outside the migration zone when he applied to the Tribunal for review of the delegate’s decision – where applicant still has not returned to Australia – whether the application should be summarily dismissed for non-appearance.

Migration Act 1958 (Cth), s.338(3)

Applicant: SYED SARFARAZ HUSSAIN ZAIDI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2843 of 2003

Judgment of: Raphael FM

Hearing date: 17 March 2005

Delivered at: Sydney

Delivered on: 17 March 2005

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. The applicant pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2843 of 2003

SYED SARFARAZ HUSSAIN ZAIDI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by virtue of an application filed on

   
   

   22 December 2003 seeking review of a decision by the Migration Review Tribunal. On 18 December 2003 the Tribunal determined that it was unable to review a decision to cancel a subclass 457 business (long stay) visa because the application was ineligible pursuant to section 338(3) of the Migration Act 1958 (Cth). That subsection states, relevantly:

   A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a)is covered by subsection (4); or

(b)is made at a time when the non-citizen was in immigration clearance; or

(c)was made under subsection 134(1), (3A) or (4) or section 501.

1. At the time in question the applicant was not in the migration zone.  It appears from an affidavit of Rebecca Kate Leahy of 14 April 2004 and filed herein that the applicant departed Australia on 13 October 2003 and has not returned.

2. Not surprisingly, the applicant has not appeared today.  No one has appeared on his behalf.  His children who are over the age of 18 years but who remain in the country were advised of the hearing by my associate and were informed that they could appear on their father's behalf.  The matter was due to be heard at 10.15 am and at 10.40 am no appearance had been made.

3. In all those circumstances I dismiss this application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules and order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate: 

Date:  22 March 2005