KUMAR v Minister For Immigration and Anor (No.2)

[2017] FCCA 2071

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2071

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the Applicant – appropriate matter for Court to exercise powers under r.13.03C(l)(c) – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), s.476

Applicant: RAJESH KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1080 of 2017

Judgment of: Judge Street

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Sydney

Delivered on: 28 August 2017

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Ms E Cheesman
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 first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1080 of 2017

RAJESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 March 2017 affirming a decision of the delegate not to grant the Applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant’s last substantive visa was held on 4 January 2013. The applicant applied for the relevant visa on 28 July 2016. The delegate refused to grant the visa on 18 August 2016, and the applicant applied for review on 7 September 2016.

3. The Tribunal, in accordance with its statutory obligations, invited the applicant to a hearing on 10 March 2017 and on 10 March 2017 affirmed the decision under review. 

4. The application to this Court was filed on 10 April 2017. The matter was fixed today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The applicant has been called and has failed to appear. 

5. The first respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The first respondent has tendered correspondence dated 13 June 2017 and 21 August 2017 both notifying the applicant of the hearing date and foreshadowing an application for costs, and that the application would be dismissed if the Applicant failed to appear for today’s hearing date.

6. On the evidence before the Court, I am satisfied that the applicant was aware of the hearing date. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

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

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 September 2017