Wijayasooriya v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2005] FCA 750

FEDERAL COURT OF AUSTRALIA

Wijayasooriya v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2005] FCA 750 Migration – Appeal dismissed for failure to attend hearing – no point of principle. Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii), s 25(2B)(bc) Migration Regulations 1994 DON UDESH ERANGA WIJAYASOORIYA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ORS VID 1126 of 2004 CRENNAN J 8 JUNE 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1126 OF 2004

On appeal from a decision of the Federal Magistrate's Court constituted by Federal Magistrate Connolly

BETWEEN: Don Udesh Eranga Wijayasooriya

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE OF ORDER: 8 JUNE 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs fixed in the sum of $4,500.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1126 OF 2004

On appeal from a decision of the Federal Magistrate's Court constituted by Federal Magistrate Connolly

BETWEEN: DON UDESH ERANGA WIJAYASOORIYA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE: 8 JUNE 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant has filed a notice of appeal dated 10 September 2004 appealing from the whole of the judgment of Connolly FM given on 20th August 2004. 2 The brief background to this appeal is as follows. On 21 July 2000 the appellant was granted a Student (Temporary) (Class TU) visa, which was valid until 30 July 2002. This visa was subject to certain conditions including condition 8202 (Enrolment and Course requirements) of the Migration Regulations 1994. The appellant was attending a course at Box Hill College of TAFE. On 30 July 2002 the appellant applied for a further visa however, his visa application was refused because he had not substantially complied with condition 8202 of his previous visa in that he had not passed any subjects in semester 1 of 2002 and he had attended only 36% of the scheduled contact hours. 3 On 19 September 2002 the appellant filed an application for review of the decision by the Minister's delegate to refuse his visa by the Migration Review Tribunal ('Tribunal'). The Tribunal affirmed the delegate's decision on 21 July 2003. On 27 August 2003, the appellant applied to the Federal Magistrate's court for review seeking writs of certiorari and mandamus and an injunction restraining the respondent from giving effect to that decision. On 20 August 2004 his Honour Connolly FM dismissed the appellant's application. On 10 September 2004 the appellant filed a notice of appeal with this Court appealing from the whole of the decision of Connolly FM. 4 The matter was fixed for hearing today. The appellant did not appear when the matter was called on for hearing. Counsel for the respondent has filed an affidavit this day giving details of the numerous attempts made by the respondent's solicitors to contact the appellant. Given the fact that the appellant was not present today when the matter was called on for hearing and having regard to the affidavit of the respondent solicitor, I am disposed to make an order pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing. I note in this context s 25(2B)(bc) of the Act which empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default. 5 Accordingly the appeal is dismissed with an order that the appellant is to pay the respondent's costs fixed at $4,500.00. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.