KUMAR v Minister for Immigration

[2016] FCCA 3100

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3100

Catchwords:
MIGRATION – Application in a case – request for adjournment of hearing – adjournment granted.

Legislation:

Migration Act 1958 (Cth)

Applicant: ATUL KUMAR

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMNISTRATIVE APPEALS TRIBUNAL

File Number: BRG 463 of 2016

Judgment of: Judge Vasta

Hearing date: 28 November 2016

Date of Last Submission: 28 November 2016

Delivered at: Brisbane

Delivered on: 28 November 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Applicant: Clayton Utz

ORDERS

1. That the Applicant file and serve any amended application and written submissions by no later than 4.00pm on 23 January 2017.

2. That the First Respondent file and serve any written submissions in reply by no later than 4.00pm on 30 January 2017.

3. That this matter be listed for hearing at 10.00am on 6 February 2017 in the Federal Circuit Court of Australia at Brisbane.

NOTATION:

(A)That the Applicant is to pay the costs of the First Respondent of today        on 6 February 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 463 of 2016

ATUL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 25 July 2016 I made orders in this Court setting down directions for the hearing of this matter. The Applicant appeared in person and Ms McConnell appeared as well. On that day I made it very clear to the Applicant what the purpose of the hearing was and I also gave him very clearly what he needed to do.

2. I told him the three dates that were very important for him.  The first date was that if he wanted to change anything that was in his application he had to do so by 12 September.  I told him the second thing that he had to do was, by 31 October, file written submissions in support of his application and then I told him the third thing was to turn up here at 2.15pm on 28 November 2016.

3. Out of those three things, he did do the last one but not the former two. He had filed in this Court very late on Thursday, such that I did not even have it in the electronic portal until midway through this hearing, an Application in a Case.

4. That Application in a Case sought an adjournment of today’s hearing, and a very lengthy adjournment, so that he could file an amended application, file any evidence that he proposed to rely on and serve written submissions.  The proposed times are exorbitant and I have already said that I will not be entertaining the matter.

5. The problem, I suppose, from my point of view is that, notwithstanding that at this particular point in time the application itself seems somewhat without merit, this is a person who, at least on the evidence in his affidavit, has attempted at the very least to do something with this matter.

6. Whilst it may not have been the greatest attempt, it does look as though he has attempted, for some time, to try and get some assistance. It is clear he really does not have a great grasp of what it is that is happening here and, as far as his own matter is concerned, attempted to rely upon an authority from this Court that he claimed showed that he was in a similar position.

7. It was a matter that I looked at and I had considered before and I was sure had been overturned in the Federal Court on appeal.  That was confirmed by Ms McConnell who acted for the Minister.  So the question really is what is the prejudice of the adjournment?

8. The prejudice of the adjournment really is very little in as much as any adjournment prejudices the Court because the Court’s business must be conducted and must be conducted expeditiously. However, the Applicant is an Applicant for a student visa and as such as has to be able to sustain himself in this country.

9. Therefore, an adjournment of the sort that I am contemplating is not going to be a burden on the taxpayer of this country. What it does mean is that the Minister does have to assess any further matters and reply to those.

10. The prejudice that affords the Minister can be cured by an order for costs which I have said I will make on the next occasion, but I am of the view that I ought give the Applicant one last chance and one last chance only to come here properly prepared for this matter. 

11. The hearing will take place on Monday 6 February 2017.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       12 December 2016