Patel v Minister for Immigration and Border Protection [2018] FCA 458

FEDERAL COURT OF AUSTRALIA

File number:	NSD 1815 of 2017

Judge:	DOWSETT J

Date of judgment:	26 March 2018

Catchwords:	PRACTICE AND PROCEDURE – application to set aside earlier order pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) – application dismissed

Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B) Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 36.75 Migration Regulations 1994 (Cth)

Date of hearing:	26 March 2018

Registry:	New South Wales

Division:	General Division

National Practice Area:	Administrative and Constitutional Law and Human Rights

Category:	Catchwords

Number of paragraphs:	3

Counsel for the Applicant:	The Applicant did not appear

Solicitor for the First Respondent:	Ms B Rayment of Sparke Helmore

Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to costs

ORDERS

		NSD 1815 of 2017

BETWEEN:	MUKESHKUMAR AMBALAL PATEL Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	26 MARCH 2018

THE COURT ORDERS THAT:

1. the application filed 14 March 2018 be dismissed pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth); and

2. the applicant pay the first respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

1 On 14 February 2018 I dismissed an appeal by the present applicant pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (“the Federal Court Rules”), the ground for such dismissal being his absence from the hearing. On 14 March 2018 the applicant filed an application for an order setting aside my earlier order and for other relief. The application was listed for hearing today before me in Brisbane and, by videolink, to Sydney. The applicant has, again, not appeared. I have power pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) to vary or set aside my earlier order, which was an order of the kind described in s 25(2B)(bb)(ii). In other words, the application should be treated as an invitation to exercise the appellate jurisdiction of the Court. This application is a proceeding within the meaning of r 5.22 and r 5.23 of the Federal Court Rules. The applicant is in default in that he has not attended today. I therefore dismiss the application pursuant to r 5.23(1)(b)(i).

2 I should add that the Tribunal dismissed the applicant’s visa application on the basis that, pursuant to criterion 3001 in Sch 3 to the Migration Regulations 1994 (Cth) the application had to be made within 28 days of the expiry date of his last substantive visa. The evidence demonstrated that the expiry date was 28 December 2012. The presently relevant visa application was made on 11 July 2016. There has never been any dispute about these dates. In those circumstances, the application to the Circuit Court for review of the Tribunal’s decision, and the appeal to this Court from the Circuit Court Judge’s decision were always bound to fail.

3 I dismiss the application filed on 14 March 2018. I order that the applicant pay the first respondent’s costs of the application. I note that the second respondent indicated, in connection with the appeal, that it would abide the order of the Court, save as to costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 4 April 2018

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