STANKOVIC v Minister for Immigration

[2016] FCCA 1313

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANKOVIC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1313

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – no appearance by the applicant – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: DEJAN STANKOVIC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 297 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Ms Milutinovic

ORDERS

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

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 297 of 2015

DEJAN STANKOVIC

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 respect of a decision of the tribunal made on 15 July 2015 affirming a decision of the delegate not to grant the applicant a Temporary (Class UK) visa. On 25 September 2015 a Registrar of the Court fixed the matter for further directions and provided the applicant with an opportunity to file amended application, affidavit evidence and submissions. The matter was listed for further directions on 22 December 2015 at 9.30 am, and on that date, the matter was then fixed for hearing today.

2. The solicitor for the first respondent has filed an affidavit that identifies the applicant had a visa that expired on 19 February 2016 and that the applicant left Australia on 19 February 2016.  It is clear that the applicant was aware that the matter was listed for hearing today, as on 19 May 2016 the applicant sent in a letter requesting that the proceedings be adjourned for another six months.  The letter identified that the applicant did not have a visa and asserted that the applicant had lost it due to an error of the migration service.  It is not clear whether that is an error alleged by the applicant in respect of the Minister or an error alleged by the applicant in relation to his own migration agent.  In either case nothing in the applicant’s letter dated 19 May 2016 satisfactorily explains the applicant’s absence on the hearing date that was fixed for hearing today. 

3. The first respondent has moved to have the application dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  I am satisfied that the applicant was aware of the hearing date.  I am satisfied from the applicant’s letter dated 19 May 2016 that the applicant knew the matter was on for hearing.  I do not regard anything said in the applicant’s letter dated 19 May 2016 as justifying grounds for an adjournment.  Further, on the material before the Court, an adjournment would only unnecessarily increase the costs of the parties and utilise limited Court time. 

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

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

Date:2 June 2016