Federal Court of Australia

Shekhar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 522

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the application.

3.    The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

BURLEY J:

1    The applicant, a citizen of India, seeks leave to appeal from a decision of the then Federal Circuit Court of Australia (FCCA) in Shekhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2071 (decision).

2    On 3 September 2017, the applicant applied for a Regional Employer Nomination (Subclass 187) visa. On 14 May 2018, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused the application because the applicant did not have an approved nomination as required by cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

3    On 25 May 2018, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. On 17 December 2018, the Tribunal wrote to the applicant seeking information regarding the absence of an approved nomination. The applicant did not respond. On 20 June 2019, the Tribunal wrote to the applicant inviting him to comment on or respond to information, pursuant to s 359A of the Migration Act 1958 (Cth) (s 359A invitation). The s 359A invitation informed the applicant that the nomination application made by his employer had been refused and that the decision to refuse the nomination is not the subject of a review by the Tribunal. The applicant did not respond. On 5 July 2019, the Tribunal affirmed the delegate’s decision.

4    On 29 July 2019, the applicant made an application to the FCCA under s 476 of the Act. The matter was fixed for a show cause hearing on 16 August 2021. The applicant appeared and represented himself. The primary judge dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

5    The applicant now seeks leave to appeal to this Court on the following grounds:

(1)    HON. JUDGE FAILED TO HOLD THAT ADMINISTRATIVE APPEALS TRIBUNAL MADE JURISDICTIONAL ERROR OF LAW WHEN IT TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION AND MISCONDUCT THE FACTS.

(2)    AAT AND FFEDERAL CIRCUIT COURT DID NOT GIVE ME JUSTICE.

(3)    I APPEAL TO HIGHER COURT GIVE ME JUSTICE.

(4)    I ALSO REQUEST TO FCC COURT TO GIVE ME TIME BUT THEY DID NOT GRANT ME.

6    The applicant requires leave to appeal as decisions made under r 44.12(1)(a) of the FCC Rules are considered interlocutory for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth); AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442 at [2] (Markovic J).

7    The question of whether leave to appeal should be granted depends on whether the applicant can demonstrate that there is sufficient doubt as to the correctness of the judgment below to warrant review and that, if that judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398–399 (Sheppard, Burchett and Heerey JJ).

8    In the present case, the matter was called for hearing on the nominated day for hearing and the applicant failed to appear after the matter was called three times. The applicant’s failure to appear comes against a background where procedural orders were made by a Registrar of the Court on 3 November 2021 requiring the applicant to file and serve a draft notice of appeal setting out particularised grounds for appeal within 10 days of that date. That order was not complied with. Nor did the applicant file or serve any written outline of submissions 10 days prior to the hearing date as required by the orders. The Minister has tendered an email dated 18 April 2023 which was sent to the email address recorded on the application for leave to appeal, filed by the applicant. It appears that the applicant was informed that the hearing was today and yet has declined to appear.

9    Rule 35.33 of the Federal Court Rules 2011 (Cth) provides as follows:

(1)    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

(i)    the application be dismissed; or

(ii)    the application be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

(b)    if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular aspect of the application; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken.

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the proceeding.

10    The applicant being absent when the matter has been called for hearing, I am satisfied that his application should be dismissed. I note that subrule (2) of rule 35.33 provides that a party who is absent may apply to the Court for an order setting aside or varying the order. That provides the applicant with an opportunity, should he choose to do so, to come before the Court and explain his absence and seek leave for the matter to be re-agitated. However, in the circumstances, I am satisfied that the appropriate course is to dismiss the matter for reason of non-appearance.

11    Accordingly, I order that:

(1)    the application be dismissed;

(2)    the applicant pay the costs of the application; and

(3)    the name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

Associate:

Dated:    24 May 2023