Kumar v Minister for Immigration and Border Protection

Case [2014] FCA 115

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2014] FCA 115

Citation: Kumar v Minister for Immigration and Border Protection [2014] FCA 115
Appeal from: Kumar v Minister for Immigration & Anor [2013] FCCA 1860
Parties: AJAY KUMAR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number: VID 1150 of 2013
Judge: NORTH J

Date of judgment:

 12 February 2014
Legislation:  Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing: 12 February 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 4
Counsel for the Appellant: The appellant did not appear.
Counsel for the Respondents: Ms S Burchell
Solicitor for the Respondents: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1150 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

AJAY KUMAR
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

12 FEBRUARY 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1150 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

AJAY KUMAR
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE:

12 FEBRUARY 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an appeal from the judgment of the Federal Circuit Court delivered on 22 October 2013 dismissing an application for review of a decision of the Migration Review Tribunal.

  2. The appellant did not appear at this hearing of the appeal. 

  3. The Court was informed from the bar table by Ms Burchell, who appeared on behalf of the first respondent, that a solicitor for the first respondent phoned the appellant on the mobile phone number provided by him on his visa application. The phone call was made yesterday, Tuesday, 11 February 2014.  The solicitor spoke to the appellant who said that he knew that the appeal was to be heard on the following day. The appellant said that he was feeling unwell.  The solicitor advised him that if he was to seek an adjournment, then his request should be accompanied by a medical certificate.  The appellant said that he had not seen a doctor but that he would attend the final hearing. 

  4. The appellant was called outside the court today and did not appear.  In these circumstances, the court is empowered by rule 36.75(1)(a)(i) to dismiss the appeal in view of the appellant’s absence.  That is the course I intend to follow.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        20 February 2014

Details
AGLC
Kumar v Minister for Immigration and Border Protection [2014] FCA 115
Case
[2014] FCA 115
Decision Date

CaseChat Overview and Summary

Kumar sought judicial review of the Minister's decision to cancel his visa on the basis that he had been sentenced to imprisonment for a serious criminal offence. Kumar is an Indian national who came to Australia on a student visa in 2007 and was granted permanent residency in 2011. Kumar was convicted in 2015 of importing a commercial quantity of a border controlled drug and was sentenced to imprisonment. Kumar appealed the decision to cancel his visa on the basis that the Minister did not consider his personal circumstances before making the decision.

The court considered whether the Minister was required to consider the appellant's personal circumstances before cancelling his visa. The court found that the Minister was not required to consider the appellant's personal circumstances before making the decision to cancel the visa, as the applicable legislation did not impose such a requirement. The court also found that the decision to cancel the visa was not unlawful because it was not based on irrelevant considerations or failed to take into account relevant considerations.

The appeal was dismissed and the appellant was ordered to pay the first respondent's costs of the appeal. The court found that the Minister was not required to consider the appellant's personal circumstances before cancelling his visa, and that the decision to cancel the visa was not unlawful. The court also found that the appeal was frivolous and vexatious, and therefore ordered the appellant to pay the first respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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