Patel v Minister for Immigration and Citizenship [2011] FCA 989 (5 August 2011)

Last Updated: 29 August 2011

FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship [2011] FCA 989

Citation:		Patel v Minister for Immigration and Citizenship [2011] FCA 989
Appeal from:		Patel v Minister for Immigration & Anor [2011] FMCA 223
Parties:		BHAVINKUMAR ARVINDBHAI PATEL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		VID 338 of 2011
Judge:		GRAY J
Date of judgment:		5 August 2011
Legislation:		Federal Court Rules O 52 r 19(1), O 22 r 2(1), O 52 r 19(3)
Date of hearing:	5 August 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the appellant:	The appellant did not appear
Counsel for the first respondent:	Ms N Bosnjak
The second respondent submitted to any order the Court might make, save as to costs
Solicitor for the respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 338 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BHAVINKUMAR ARVINDBHAI PATEL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	5 AUGUST 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The notice of discontinuance filed on 25 July 2011 be treated as a notice of discontinuance filed in accordance with O 52 r 19(1) of the Federal Court Rules and be treated as effective to discontinue the appeal.
   
2. The requirement in O 52 r 19(1) of the Federal Court Rules that the notice of discontinuance be served be dispensed with.
   
3. The appellant pay the first respondent’s costs of the appeal, including the costs of the application for an extension of time to file and serve the notice of appeal.
   

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 338 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BHAVINKUMAR ARVINDBHAI PATEL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE:	5 AUGUST 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 10 March 2010 the appellant in this appeal applied for a Student (Temporary) (Class TU) visa. On 24 March 2010 a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to the appeal, refused to grant that visa. By letter dated 24 March 2010, the appellant was notified of the decision and of his right to seek review by the Migration Review Tribunal (“the Tribunal”), the second respondent to the appeal. Unfortunately, that letter did not reach him. When he learned of the delegate’s decision the appellant applied to the Tribunal for a review of it. His application was lodged on 21 June 2010. In a decision dated 16 September 2010, the Tribunal determined that it did not have jurisdiction to deal with the appellant’s application for review, because the application was lodged outside the time limit for making such applications, a time limit which was not capable of being extended by the Tribunal.
2. On 13 October 2010, the appellant applied to the Federal Magistrates Court of Australia (“the Federal Magistrates Court”) for judicial review of the Tribunal’s decision. Subsequently, he amended his application. On 7 April 2011, the Federal Magistrates Court dismissed the application with costs. On 3 May 2011, the appellant applied to this Court for an extension of time in which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court. On 9 June 2011, North J extended the time for filing and serving a notice of appeal to 3 May 2011 and directed that the appeal be listed for hearing in the appeal sittings during August 2011. The appeal was duly listed for hearing before me today.
3. On 25 July 2011, the appellant filed in the Court a notice of discontinuance. I assume that the notice of discontinuance was posted, because it is dated 22 July 2011, it has been folded in a way consistent with being placed in an envelope, and the representative of the Minister appearing today informs me that the appellant left Australia on 23 July 2011. By O 52 r 19(1) of the Federal Court Rules, as they applied on 25 July 2011, the appellant was entitled to discontinue his appeal by filing and serving a notice of discontinuance in accordance with form 29A, without the leave of the Court. The difficulty is that the notice of discontinuance was not in accordance with form 29A. The notice of discontinuance is in the form of form 29, the form applicable for a proceeding in the original jurisdiction of the Court when an applicant sought to discontinue under O 22 r 2(1) of the Federal Court Rules as they then applied. An additional difficulty is that the appellant may have neglected to serve his notice of discontinuance on the respondents.
4. It does seem clear from the notice, and from his departure from Australia, that the appellant’s intention was to discontinue his appeal. In that case, I see no reason why effect should not be given to that intention. Giving effect to that intention would involve treating the notice of discontinuance that was filed as having been filed in accordance with O 52 r 19(1) of the Federal Court Rules and dispensing the appellant from the requirement of service. This would have the effect of bringing the appeal to an end.
5. By O 52 r 19(3) of the Federal Court Rules as they then applied, an appellant who filed a notice of discontinuance under subr (1) became liable to pay the costs of any other party to the appeal. I do not have the substituted Federal Court Rules before me, but I have no doubt there will be an equivalent provision in those rules. For the sake of completeness, however, it would be appropriate to order that the appellant pay the first respondent’s costs of the appeal, including the costs of the application for an extension of time to file and serve the notice of appeal.
6. I should mention that the order for costs is confined to the first respondent, because the appearance entered by the Tribunal is a submitting appearance, save as to orders for costs that might be sought against it.
   
7. The orders I make are as follows:
   1. The notice of discontinuance filed on 25 July 2011 be treated as a notice of discontinuance filed in accordance with O 52 r 19(1) of the Federal Court Rules and be treated as effective to discontinue the appeal.
      
   2. The requirement in O 52 r 19(1) of the Federal Court Rules that the notice of discontinuance be served be dispensed with.
      
   3. The appellant pay the first respondent’s costs of the appeal, including the costs of the application for an extension of time to file and serve the notice of appeal.
      

I certify that the preceding seven (7) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

Associate:

Dated: 26 August 2011