Rai v Minister for Immigration

[2015] FCCA 1215

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1215

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Dismissal for want of appearance – proceedings dismissed.

Legislation: 

Migration Act 1958, s.476

Applicant: KULWANT RAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 961 of 2015

Judgment of: Judge Street

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Sydney

Delivered on: 7 May 2015

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

ORDERS

1. The application be dismissed for default of appearance.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 961 of 2015

KULWANT RAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking a Constitutional writ in respect of a decision of the Tribunal on 25 March 2015, in which the Tribunal found that it did not have jurisdiction in the matter.  The matter was listed at 9.30 am.  The applicant had sent to the Court prior to the hearing an email foreshadowing that he would not be able to appear because he is in India and was looking after his sick father, and the applicant requested that the matter be adjourned. 

2. The application for an adjournment is neither consented to nor opposed by the respondent.  It is clear that the grounds of the alleged jurisdictional error are deficient and fail to disclose any proper arguable jurisdictional error.  In the circumstances, I am satisfied that it is appropriate to dismiss the application for default of appearance.  I have taken into account in that regard that the application patently fails to disclose any arguable jurisdictional error. Had the applicant appeared the matter would most likely have been dismissed under an immediate show cause hearing. The application is dismissed for default of appearance.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2015