FEDERAL COURT OF AUSTRALIA

Mahmood v Minister for Immigration and Multicultural Affairs [2002] FCA 387

Federal Court Rules  O 32 r 2(1)(c)

Pham v University of Queensland [2002] FCA 203  at [26]  applied

TAYYAUB MAHMOOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 649 OF 2001

HEEREY J

25 MARCH 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for review be dismissed, with effect from 4.15:PM on 10 April 2002, unless before that time the applicant has filed and served a notice of motion and supporting affidavit seeking to have this order vacated.

2.         The applicant pay the respondent’s costs for this application.

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

REASONS FOR JUDGMENT

1                     This is an application under Pt 8 of the Migration Act 1958 (Cth) to review a decision of the Refugee Review Tribunal made on 23 April 2001 affirming the decision of a delegate of the Minister to refuse the applicant a protection visa.  When the matter was called on for hearing today, the applicant, who has not been legally represented in the course of these proceeding, did not appear.  My inquiries revealed the following position.  The application for an order for review was filed in this court on 12 June 2001.  The address given for the applicant was 2/30 Abbotsford Street, Abbotsford, Victoria 3067.  I was informed by counsel for the Minister that on 1 October 2001 the applicant called at her instructing solicitor's offices and, amongst other things, asked that correspondence be sent to Post Office box 523, Noble Park, Victoria 3174.  He gave a mobile phone number, 0413-579-743. 

2                     The Court initially listed the matter for hearing on 12 March 2002.  The Court sent a letter dated 10 December 2001 advising of that date to the respondent's solicitors and to the applicant.  The letter to the applicant was addressed to the Abbotsford Street address.  The Court file has the envelope returned.  There is a redirection label on the envelope indicating redirection to Post Office box 5031, Brunswick North, Victoria 3056, such redirection to expire on 15 December 2001.  I infer that, having regard to the time of the year at which the letter was sent, it presumably reached Brunswick North post office after the expiry date of the redirect notice and it was hence returned to the Court. 

3                     For reasons not presently relevant, the matter was relisted and fixed for today, 25 March 2002, and notice of that change of listing was sent to the applicant at the Noble Park address.  On Friday 22 March 2002 my Associate, by way of a routine confirmation, telephoned the applicant at the mobile phone number but the phone was switched off.  There was also an e-mail address.  He also sent an e-mail to the applicant at that e-mail address: tayyaub_mahmood@hotmail.com.  That address was no longer operative. 

4                     I am satisfied that reasonable steps have been made to inform the applicant of the place of the hearing and that it is appropriate that the power under Order 32 r 2(1)(c) should be exercised.  The Full Court of this Court has recently confirmed that in the exercise of that power the trial judge is not required to embark upon any investigation of the merits of the applicant's claim: Pham v University of Queensland [2002] FCA 203 at [26].  Although it is therefore not necessary to do so, I must say that, having read the decision of the Tribunal and the submissions of the Minister, and, I should add, the written statement that was annexed to the original application for an order for review, it is hard to see that the applicant's case was any more than an attack on the Tribunal’s finding of fact.

5                     The application will be dismissed.  There will be an order that the applicant pay the Minister's costs. 

Associate:

Dated:              4 April 2002