Agarwal v Minister for Immigration
[2004] FMCA 479
•4 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AGARWAL v MINISTER FOR IMMIGRATION | [2004] FMCA 479 |
| MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of decision of Refugee Review Tribunal – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 where applicant did not appear. |
Federal Magistrates Court Rules 2001
| Applicant: | VINEETH KUMAR AGARWAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 698 of 2003 |
| Delivered on: | 4 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 4 August 2004 |
| Judgment of: | Lloyd‑Jones FM |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
Pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the costs of the respondent fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 698 of 2003
| VINEETH KUMAR AGARWAL |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant Vineeth Kumar Agarwal had a (Class TU) Student P140 (subclass 560) visa on 17 December 1998 and arrived in Australia from India on 20 January 1999. On 30 January 2001 the applicant was granted a visa (Class TU) Student P740 (subclass 572) until 3 April 2003. The visa was subject to conditions of 8202 in course requirements. The applicant was enrolled in a registered course, diploma of computing at the Melbourne Institute of Business and Technology.
By letter dated 30 August 2002 MIBT notified the applicant pursuant to section 20 of the Educational Services for Overseas Students Act 2000 that he had breached the conditions of the visa relating to attendance and that he had been excluded from the MIBT due to not meeting attendance requirements. The applicant reported to the DIMA on 26 September 2002 and was interviewed on 24 October 2002. His visa was cancelled on 24 October 2002 by a delegate of the respondent for breach of condition 8202 because the applicant had not met requirements to attend at least 80 per cent of the scheduled contact hours of the course.
The applicant lodged an application for review in the Migration Review Tribunal on 4 November 2002. On 23 May 2003 the MRT affirmed the delegate's decision. On 30 June the applicant applied to this court for review and seek an order making the matter remitted to the MRT for proper determination. The matter was set down for hearing today, being 4 August at 10:15am, on 15 October 2003. The matter was called at 10:20am but no appearance of the applicant and again called at 10:35am. Again, there is no appearance of the applicant.
In all the circumstances, it seems to be appropriate that in the absence of the appearance I dismiss the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which is a dismissal for default of appearance of the party. The applicant does not lose any substantive right by the dismissal. He is entitled to apply to the court to vary or set aside this order if he wishes to do so. It is then a matter for discretion whether or not the court will set aside the order.
I am asked to make an order to costs, which I propose to do, and that of course will form part of the orders which the applicant if he chooses can apply to seek to set aside.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate: Sophie Killen
Date: 4 August 2004
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