KUMAR v Minister for Immigration

[2020] FCCA 1150

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1150

Catchwords:
MIGRATION – Adjournment of application due to lack of particularity in grounds for review – orders requiring the filing of an amended application duly particularised.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.102(2)(i), 102(2)(f).

Federal Circuit Court Rules 2001 (Cth), rr.13.03A(1)(a), 13.03B(1)(c), 21.02(1).

Applicant: DEEPAK KUMAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1009 of 2019

Judgment of: Judge Egan

Hearing date: 7 May 2020

Date of Last Submission: 7 May 2020

Delivered at: Brisbane

Delivered on: 7 May 2020

REPRESENTATION

Applicant: In Person

Solicitors for the First Respondent: Mr Freeburn, Solicitor of Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. Orders 3, 4, 5, 6 and 8 of the Orders of Registrar Buckingham made on 29 January 2020 be set aside.

2. The hearing of this matter listed for 20 May 2020 be vacated.

3. By 4.00pm on 21 May 2020, the Applicant is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review.

4. By 4.00pm on 21 May 2020, the Applicant is to file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the grounds of review.

5. By 4.00pm on 28 May 2020, the First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the grounds of review.

6. This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 3 hereof relating to the ordered filing by the Applicant of an amended application containing detailed particulars of the grounds for review to be relied upon at the final hearing of this matter.

7. The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.

8. In the event that the Applicant has failed to comply with Order 3 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(‘the Rules’), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Rules.

9. The costs of and incidental to the hearing today be reserved.

IT IS NOTED THAT:

(a)The Applicant was put on notice, during the course of today’s hearing in open Court, that in the event that the Applicant fails to comply with Order 3 hereof relating to the filing of an amended application, the application before the Court for review of the decision of the Migration Review Tribunal handed down on 28 January 2015 is liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, a copy of which rule is to be provided to the Applicant by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1009 of 2019

DEEPAK KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND ANOTHER

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was commenced by the filing of an originating application for review on 25 November 2019. On 29 January 2020, a Registrar made an order that the applicant was to file and serve any amended application by 18 March 2020. It should have been apparent at the time of filing that the Originating Application for Review lacked sufficient particulars so as to allow for the fair hearing of this matter.

2. When this matter came before the Court today – no amended application containing detailed grounds of review had been filed. That was probably because there was no order requiring the applicant to do so.

3. At the commencement of the hearing, a set of draft orders was sent to the applicant and to Mr Freeburn, who appeared on behalf of the first respondent. The applicant indicated to the Court that he had read those proposed draft orders, and that he understood each of them. In particular, the applicant said that he understood that if he did not comply with the order of this Court requiring him to file and serve an amended application which included detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the final hearing of the matter by 21 May 2020, that such originating application for review was liable to be dismissed. This Court considers the provision of particulars to grounds of review an important aspect of the applicant’s claim.

4. Accordingly, it is ordered as per the set of draft orders circulated to the parties this morning.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 13 May 2020