Khosa v Minister for Immigration

[2016] FCCA 233

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHOSA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 233

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – no appearance by or on behalf of the applicant – application dismissed for want of appearance pursuant to r.13.03C(1)(c).

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Applicant: DEEPINDER SINGH KHOSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1915 of 2015

Judgment of: Judge Street

Hearing date: 10 February 2016

Date of Last Submission: 10 February 2016

Delivered at: Sydney

Delivered on: 10 February 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1915 of 2015

DEEPINDER SINGH KHOSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) seeking a Constitutional writ in respect of a decision of the Tribunal made on 18 June 2015 affirming a decision not to grant the applicant a partner temporary class UK visa. On 6 August 2015, a registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions then standing the matter over for a call-over on 2 November 2015. No documents were filed pursuant to those orders by the applicant.

2. Prior to that call-over, the applicant sent the first respondent an email confirming agreement to the matter being fixed for hearing at the call-over and an order was made on 2 November 2015 fixing the matter for hearing today.  A further letter has been tendered dated 3 February 2016, sent to the applicant’s address, as identified on the application enclosing submissions and reminding the applicant of the hearing date and foreshadowing that an application would be made to dismiss the application should the applicant fail to appear.

3. The first respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I am satisfied that the applicant was well aware of the hearing date. I note no explanation has been given to the first respondent in relation to the absence of the applicant. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.13.03C(1)(c). The application dismissed under r.13.03C(1)(c).

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 February 2016