Kumar v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 251

MIGRATION – Review of decision of Migration Review Tribunal– application in a case made pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) – whether explanation of failure to appear at final hearing is satisfactory – whether explanation of delay in filing application in a case is satisfactory – whether substantive application for judicial review of decision of Migration Review Tribunal has any or any reasonable prospects of success.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C, 16.05
Education Services for Overseas Student Act 2000 (Cth), s.20
Migration Act1958 (Cth), s.116

Kumar v the Minister for Immigration & Anor [2010] FMCA 614

Applicant: VIKAS KUMAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 981 of 2011

Judgment of: Emmett FM

Hearing date: 20 March 2012

Date of Last Submission: 20 March 2012

Delivered at: Sydney

Delivered on: 20 March 2012

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application in a Case, filed on 27 January 2012, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 981 of 2011

VIKAS KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 27 January 2012, the applicant filed an Application in a Case seeking the following orders:

   “1. Section 20 cancellation revised notice was invalid.

   2. Student visa reinstated.”

2. Those orders do not seek an order setting aside a decision made by this Court on 31 May 2011, which dismissed the applicant’s application for judicial review of a decision of the Migration Review Tribunal dated 19 April 2011 by reason of the applicant’s failure to attend the first Court date.

3. However, having regard to the fact that the applicant is not represented before this Court, I am prepared to accept that the Application in a Case is intended to seek an order pursuant to r.16.05 of the Federal Magistrates Court Rules2001 (Cth) (“the Rules”), seeking to set aside the Order made on 31 May 2011 dismissing with costs the applicant’s proceeding commenced by way of application filed on 16 May 2011, pursuant to r.13.03C(1)(c) of the Rules.

4. At the commencement of the hearing this morning, I explained to the applicant that the matters that would be particularly relevant to the Court in considering his application would be his explanation for his failure to appear at Court on 31 May 2011; his delay in filing his present application; and, whether there was any utility in the Court seeking to set aside the Court’s Order, made on 31 May 2011, dismissing the applicant’s substantive application for judicial review  on the basis that it has no reasonable prospects of success.

5. In support of his application, the applicant read an affidavit…