Nakka v Minister for Immigration

[2016] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAKKA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2016

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division – Student Temporary (Class TU) visa – failure to appear – application dismissed for want of appearance.

Legislation:

Federal Circuit Court Rules2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), s.476

Applicant: AJAY KUMAR NAKKA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3323 of 2014

Judgment of: Judge Street

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Sydney

Delivered on: 8 August 2016

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: DLA Piper

ORDERS

1. Leave to the First Respondent to file in Court the affidavit of Cassandra Nguyen affirmed on 5 August 2016.

2. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3323 of 2014

AJAY KUMAR NAKKA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 November 2014 affirming the decision of the delegate not to grant the applicant a student temporary class TU visa. The matter was listed for hearing today and the applicant has failed to appear.

2. The respondent has moved for the dismissal of the application under r.13.03C(1)(c) of the Federal Circuit Court Rules2001.  The respondent has written an affidavit identifying the sending of a letter to the applicant’s address identified on the application, confirming the listing for hearing today and foreshadowing that the matter may be dismissed and an application made for costs if the applicant fails to appear. 

3. There has been no communication by the applicant to the respondent to explain any failure to appear. I am satisfied that the applicant was well aware of the hearing date. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules2001.

4. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules2001.

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

Date: 25 August 2016