Sahib v Minister for Immigration & Anor [2010] FMCA 459 (1 June 2010)

Last Updated: 2 July 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAHIB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 459

MIGRATION – Refugee Review Tribunal – Judicial Review – non-appearance by applicant – application dismissed.

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

Applicant:

MOHAMED SATHAKATHULLA SINTHAMATHER SAHIB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG68 of 2010

Judgment of:

Riethmuller FM

Hearing date:

1 June 2010

Date of Last Submission:

1 June 2010

Delivered at:

Melbourne

Delivered on:

1 June 2010

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the Applicant

Counsel for the Respondents:

Mr Gilbert of Counsel

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application filed on 21 January 2010 be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
(2) The Applicant pay the Respondent’s costs fixed at $5865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG68 of 2010

MOHAMED SATHAKATHULLA SINTHAMATHER SAHIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. These brief reasons have been complied from the brief exchanges on the day of the hearing.
2. On the day of the hearing there was no appearance by the applicant. The applicant was called by the court officer at 10.27a.m; however there was no response to the call.
3. The First Respondent argued the application should be dismissed for want of appearance.
4. The applicant filed an outline 27 May 2010. The outline included the following submission:
   • The applicant respectfully states that his subclass 457 visa was refused by the delegate of the first respondent on 13th March 2009 on an erroneous contention that there was no sponsorship provided in support of his application. This point has now been conceded by the learned counsel for the 1st respondent in his outline of submission.
5. The First Respondent argued that at the primary level there was a misunderstanding as to whether the applicant had a sponsor or not. He argued that that the matter was appealed to the Migration Review Tribunal who went on to decide the matter on a narrow basis, finding that regardless of whether the applicant had a sponsor or not, he could not satisfy the English language proficiency requirement.
6. As there is no appearance by the applicant, the matter is more appropriately dismissed pursuant to 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

[further discussion ensued]

7. In this case the Minister seeks costs in the sum of $5865 - this is the scale fee under the Federal Magistrates Court's scale. I therefore find that $5865 is a reasonable amount for costs.
8. I order that the applicant pay the costs of the Minister fixed at $5865.

I certify that the preceding 8Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eighteight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 29 June 2010