AGGARWAL v Minister for Immigration

Abhay Aggarwal was the applicant before the Federal Circuit Court of Australia, Melbourne, with the Minister for Immigration and Border Protection and the Administrative Appeals Tribunal as the first and second respondents respectively. The applicant sought to reinstate a migration application that he had previously discontinued. The Administrative Appeals Tribunal had affirmed a delegate's decision to refuse the applicant a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

The central legal issue before the court was whether it had the power to set aside the applicant's notice of discontinuance. The applicant argued that he discontinued the proceedings to pursue a Ministerial Intervention Request, which was subsequently declined. He contended that reinstating his migration application was his final avenue for redress, as he faced significant hardship if forced to return to his home country.

Judge McNab reasoned that the applicant had voluntarily filed the notice of discontinuance to pursue an alternative avenue of relief. The court found no evidence of duress, fraud, lack of voluntary will, or mistake in the applicant's decision to discontinue. Citing Ryan J in *SZFOZ v. Minister for Immigration and Citizenship* [2007] FCA 1137, the court held that a discontinuance, if regularly effected, may be beyond the court's power to set aside. The court concluded that it was not appropriate to set aside the notice of discontinuance.

The application filed on 25 August 2014 and the subsequent application filed on 14 June 2016 were dismissed. The applicant was ordered to pay the first respondent's costs, fixed at $1443.