Perik v Minister for Immigration

[2015] FCCA 3358

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERIK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3358

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: SAMARJEET SINGH PERIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1816 of 2015

Judgment of: Judge Street

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Sydney

Delivered on: 15 December 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms R Krishnan
Australian Government Solicitors

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1816 of 2015

SAMARJEET SINGH PERIK

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) in relation to a decision that the Tribunal made on 2 June 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. On 6 August 2015 a Registrar of the Court fixed the matter for hearing and made orders, relevantly, for the filing and service of an amended application, affidavit evidence and submissions by the applicant.  No such documents have been filed. 

3. The matter was listed for hearing at 10.15 am.  It is now past 10.25 am, and the applicant has not appeared.  The solicitor for the first respondent has tendered a letter dated 8 December 2015, marked exhibit A, sent to the address identified on the application initiating the proceedings, filed by the applicant.  That letter drew attention to the hearing date for today and foreshadowed that if the applicant failed to appear, the first respondent may seek an order for the application to be dismissed with costs.

4. I am satisfied that the applicant was well alive to the hearing date, and I am satisfied that this is an appropriate matter in which to exercise the Court’s discretion under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  The first respondent moves for the application to be dismissed under that rule.  I am satisfied that it is appropriate, in the circumstances of this case, to exercise the power under that rule. 

5. The application is dismissed under r.13.03C(1)(c).

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

Associate: 

Date: 17 December 2015