Nischal v Minister for Immigration

[2018] FCCA 1493

FEDERAL CIRCUIT COURT OF AUSTRALIA

NISCHAL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1493

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal – applicant attempted to file Notice of Discontinuance within 14 days of the scheduled final hearing of the application – applicant needs leave to file – costs order sought by Minister for Immigration – leave granted under Rule 13.01(2)(b) of the Federal Circuit Court Rules 2001 (Cth) to file Notice of Discontinuance subject to an order for costs in favour of the Minister for Immigration.

Legislation:
Migration Act 1958 (Cth)
Federal Circuit Court Rules2001 (Cth)

Applicant: NITISH KUMAR NISCHAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2772 of 2017

Judgment of: Judge Dowdy

Hearing date: 7 June 2018

Delivered at: Sydney

Delivered on: 7 June 2018

REPRESENTATION

There was no appearance for or on behalf of the Applicant.

Counsel for the Respondents: Ms E. Cheesman

Solicitors for the Respondents: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Grant leave to the Applicant to file the Notice of Discontinuance lodged by him with the Registry of this Court on 30 May 2018 pursuant to Rule 13.01(2)(b) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs in the sum of $5,130.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2772 of 2017

NITISH KUMAR NISCHAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant filed an Application for judicial review in this Court on 6 September 2017. On 29 September 2017, the matter was before me for procedural orders and the matter was set down for final hearing today. On 30 May 2017, the Applicant lodged in the Registry of this Court a Notice of Discontinuance of the whole of his Application. Because he lodged the Notice of Discontinuance within the period of 14 days prior to the hearing, he needed the leave of the Court under r.13.01(2)(b) of the Federal Circuit Court Rules2001 (Cth).

2. By an email of 31 May 2018, my Associate advised the lawyers of the First Respondent, the Minister for Immigration (Minister), of the lodging of the Notice of Discontinuance and enquired whether the Minister wanted any terms imposed in return for a grant of leave.  The Minister’s lawyers responded by an email of 1 June 2018 stating that they wanted for their client, the Minister, an order for costs in the sum of $5,130, which was the applicable scale amount. 

3. By an email dated 4 June 2018 my Associate asked the Applicant  whether he was content with such an order for costs and, if he was, then there would be no need for an appearance and the order could be made in Chambers.

4. The Applicant did not respond and by an email dated 5 June 2018 my Associate asked him to respond and asked the Minister how the matter ought proceed.  There was still no response from the Applicant and on 6 June 2018 it was indicated to the parties that they should both appear in Court this morning.  The matter has been called outside the Court three times. 

5. The Applicant has not appeared today.  There is no reason why a costs order in the amount sought by the Minister should not be made.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  7 June 2018