Upadhaya v Minister for Immigration

[2015] FCCA 1974

FEDERAL CIRCUIT COURT OF AUSTRALIA

UPADHAYA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1974

Catchwords:
MIGRATION – Student Temporary (Class TU) visa – notice of discontinuance filed within 14 days of hearing date – leave granted.

COSTS – Applicant to pay fixed costs.

Legislation:

Federal Circuit Court Rules 2001, rr.13.01, 13.02, 44.15

Migration Act 1958 (Cth), ss.476, 75(5)

Applicant: RAHUL UPADHAYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1055 of 2015

Judgment of: Judge Street

Hearing date: 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

No appearance from the Applicant

Solicitors for the Respondents: Ms S Given
Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard be dispensed with.

2. Leave be granted to file a notice of discontinuance.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1055 of 2015

RAHUL UPADHAYA

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 Act1958 (Cth), in respect of an application for a Constitutional writ, in respect of the Tribunal’s decision on 15 September 2014, affirming a decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa.

2. On 14 May 2015, the Court made orders fixing this matter for hearing.  The day before the matter was fixed for hearing, and after submissions and the court book had been served by the first respondent, the applicant filed a notice of discontinuance. 

3. Under r.13.01, a notice of discontinuance that is sought to be filed within the 14 days prior to the hearing date requires leave of the Court.

4. Rule 13.02 provides a general power for a party affected by a discontinuance to seek an order for costs.  The matter was kept in the list for the purpose of determining whether an application for costs would be made in relation to a grant of leave to discontinue. 

5. The matter was called and the applicant has not appeared. The Court’s attention was drawn to r.44.15(2) as a specific costs rule applicable in relation to proceedings in which a Constitutional writ is sought under s.75(5).

6. That provision is a rule intended to facilitate and encourage the appropriate filing of a notice of discontinuance, and to facilitate an appropriate recovery for costs in circumstances where a party discontinues the proceedings in a timely fashion. 

7. In this case, it is clear that the first respondent incurred all the steps necessary for the hearing, including attending the hearing today.  It is clearly appropriate to grant leave to file the notice of discontinuance, and, in the circumstances of this case, I order that the applicant pay the first respondent’s costs, fixed in the amount of $5800. 

8. The orders of the Court are to grant leave to file the notice of discontinuance and order the applicant to pay the first respondent’s costs, fixed in the amount of $5800. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 July 2015