Ahmad v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1039

FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1039 MUNIR AHMAD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1036 of 2004 LINDGREN J 6 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1036 OF 2004

BETWEEN: MUNIR AHMAD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 6 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal be refused. 2. The 'appeal' be dismissed as incompetent. 3. The appellant pay the respondent's costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1036 OF 2004

BETWEEN: MUNIR AHMAD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 6 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Munir Ahmad appeals from a decision of Raphael FM in the Federal Magistrates Court of Australia delivered on 10 June 2004. Although I say 'appeal', the learned Federal Magistrate dismissed the application before him as one which disclosed no reasonable cause of action under Part 13, rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) and, in those circumstances, Mr Ahmad needs leave to appeal which he has not sought. Nonetheless, I will call Mr Ahmad 'the appellant'. 2 In fact, the respondent Minister filed a notice of objection to competency on 28 July 2004 stating that the judgment of Raphael FM was an interlocutory judgment and under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), leave to appeal was required but had not been obtained. 3 Treating the present appeal as an application for leave to appeal, I ask myself whether leave to appeal should be granted. I think it clear that it should not be because an appeal would be doomed to fail. 4 The background facts can be stated briefly. The following account of them is based on the reasons for decision of Raphael FM. The appellant arrived in Australia on a business (long stay) visa on 9 September 2000. That visa expired on 8 September 2002. Since that time the appellant has held a bridging visa granted on the basis of an application which he made on 5 September 2002 for a temporary business entry (class UC) visa. 5 On 23 April 2003 a delegate of the Minister (respectively 'the Delegate' and 'the Minister') refused to grant the temporary business entry (class UC) visa on the ground that the appellant did not have an approved business sponsor. The reason for this was that the appellant's previously approved business sponsor had withdrawn its sponsorship of the appellant on 9 April 2003 - 14 days prior to the Delegate's decision. 6 The appellant applied to the Migration Review Tribunal ('the Tribunal') for a review of the Delegate's decision. The appellant was represented by solicitors and there was correspondence between them and the Tribunal. The course of that correspondence is referred to in the reasons for judgment of Raphael FM. On 21 January 2004 the Tribunal wrote requesting the appellant to comment upon certain information, being information which the Tribunal considered would be the reason or part of the reason for affirming the Delegate's decision. That request for comment was made under s 359A of the Migration Act 1958 (Cth) ('the Act'). The information referred to was that another sponsor of the appellant, a company called Fobupu Pty Limited trading as 'Pak Tandoori Restaurant', was approved as a standard business sponsor on 20 January 2003 valid for 12 months. That approval, it will be observed, expired by 21 January 2004, the day on which the Tribunal wrote its letter. In fact, the approval had expired on the preceding day, 20 January 2004. 7 The appellant's lawyers replied to the Tribunal on 30 January 2004 stating: 'We confirm that our client is not presently nominated by an approved standard business sponsor.' 8 The Tribunal wrote to the solicitors advising that a hearing would take place on 16 February 2004. The solicitors replied on 11 February 2004 indicating that the appellant would not be attending the Tribunal hearing and noting that the Tribunal would 'proceed to make a decision to affirm the decision under review'. In fact the solicitors indicated that the appellant required that a decision be made for the purposes of any request to the Minister under s 351 of the Act.