Qureshi v Minister for Immigration and Citizenship [2008] FCA 1324

FEDERAL COURT OF AUSTRALIA

Qureshi v Minister for Immigration and Citizenship [2008] FCA 1324

MUHAMMAD RIZWAN QURESHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

VID 362 of 2008

RYAN J

26 AUGUST 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 362 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MUHAMMAD RIZWAN QURESHI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 26 AUGUST 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, to be taxed in default of agreement. 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 362 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MUHAMMAD RIZWAN QURESHI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 26 AUGUST 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Turner FM on 1 May 2008 dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). By a decision handed down on 29 May 2007 the Tribunal had affirmed a refusal on 16 October 2002 by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to grant a Student (Temporary) Vocational Education and Training (Class TU) subclass 572 visa to the appellant. 2 The Tribunal found that the appellant had not provided evidence that he had the financial capacity to undertake his proposed course of study because he had failed to provide evidence, in accordance with cl 5A405 of the Migration Regulations 1994 ("the Regulations"), of the existence of funds from an acceptable source that were sufficient to meet certain fees and costs specified in the Regulations before he lodged the visa application. The Tribunal therefore affirmed the decision not to grant the appellant a student visa. 3 Before Turner FM, the appellant contended that the decision of the Tribunal had been made without jurisdiction or without according the appellant procedural fairness because the Tribunal had applied the wrong regulation at the hearing, had misled the appellant about a critical issue in contravention of s 360 of the Migration Act 1958 (Cth) and had failed to inform the appellant of the error which had been made at the hearing. The learned Federal Magistrate held that there was no jurisdictional error and dismissed the application. 4 The appellant filed a notice of appeal to this Court on 22 May 2008. In it he asserted that he had not been informed by the Tribunal that his sister was not an "acceptable individual" and had not been given an opportunity to respond to that issue. 5 On 15 May 2008 Registrar Josan in this Court gave directions to make the appeal ready for hearing. Those directions included the following; '8. The appellant file and serve written submissions no later than five (5) clear working days before the hearing date, unless otherwise directed.' 6 The appellant has failed to comply with that direction, and did not appear when the appeal was called on for hearing. No explanation has been provided either for the appellant's non-compliance with the direction of Registrar Josan or for his non-appearance this morning. Accordingly, it is open to the Court in the exercise of powers conferred by O 35A of the Rules of this Court to order that the appeal be dismissed as to the whole of the relief claimed by the appellant because of the appellant's default in failing to comply with the direction of 18 May 2008, and his failure to prosecute the proceeding with due diligence by attending on the hearing of the appeal today. I consider, in the circumstances, that that is an appropriate exercise of the Court's discretion and I shall order accordingly that the appeal be dismissed pursuant to O 35A and that the appellant pay the Minister's costs of the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.