Federal Court of Australia

Nagpal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 575

ORDERS

THE COURT ORDERS THAT:

1.    Under rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) the application for an extension of time to appeal is dismissed.

2.    The applicant must pay the first respondent's costs of the application fixed in the sum of $5000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Mr Nagpal has applied for an extension of time within which to appeal from a decision of the Federal Circuit Court of Australia (as it then was) dismissing an application for judicial review in relation to the refusal of a student visa. He did not appear at the hearing of his application today, which was dismissed in his absence. These are the reasons for the dismissal.

2    In the Federal Circuit Court, Mr Nagpal had sought review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the first respondent (Minister) to refuse Mr Nagpal's application for a Student (Temporary) (Class TU) visa.

3    At the commencement of today's hearing of the application, there was no sign of Mr Nagpal in court or in surrounding waiting areas. When the hearing commenced, a court officer called on the matter three times outside court and there was no response. My chambers had notified Mr Nagpal of the date and time of this hearing, as well as the possible consequences for him if he did not attend the hearing, on several occasions as follows:

(1)    On 20 February 2023, my chambers sent an email to the parties advising them of the date, time, duration and location of the hearing.

(2)    On 22 May 2023, my chambers sent an email to the parties noting that the deadline for the applicant to file written submissions had passed. That email also included a notice that if Mr Nagpal did not attend the hearing on today's date, that may result in the application being dismissed in his absence.

(3)    On 26 May 2023, my chambers sent a further email to the parties in much the same terms as the email on 22 May 2023.

4    Prior to those notifications from the court, Mr Nagpal also indicated by email on 10 February 2023 to my chambers that he had no unavailable dates for a hearing in June or July 2023. It is therefore apparent that he has had ample notice of the date and time of this hearing and the possible consequences for him if he failed to attend.

5    Apart from Mr Nagpal's unexplained absence at the hearing, it is relevant to note that the sole proposed ground of appeal is entirely generic and unparticularised. It appears in an affidavit which accompanied his application:

I believe that the Department of Home Affairs and Administrative Appeals Tribunal followed by Federal Circuit Court have not accessed [assessed?] my application, and thus assessment of my application lacks procedural fairness'.

6    The ground does not provide any guidance to the Court as to any particular error to which he says the primary judge made. While this alone may not have been sufficient reason to dismiss the application if Mr Nagpal had appeared at the hearing (as a self-represented litigant), it is relevant to the exercise of the discretion that arises because of his failure to appear. Without Mr Nagpal appearing, the Court would have been left to engage in pure speculation as to whether or not the appeal has any merit, as part of its consideration of whether to grant an extension of time to file a notice of appeal. As mentioned above, Mr Nagpal has not filed any written submissions that would serve to shed any further light on any error of the primary judge or the merits of his proposed appeal.

7    The application for an extension of time thus has no apparent merit, because there is no merit in the proposed appeal ground. Mr Nagpal did not turn up at Court to argue his case. I therefore exercised the discretion to dismiss the application pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth). It will be open to Mr Nagpal to apply under r 35.33(2)(a) to set aside this order made in his absence.

8    The Minister sought costs fixed in the sum of $5,000. The short form amount stipulated in item 15.2 of Schedule 3 to the Rules when an appeal or application under the Migration Act 1958 (Cth) is discontinued or dismissed after hearing is $7,965. $5,000 is a substantial discount on that amount and so appeared to me to be a reasonable and appropriate sum to award.

Associate:

Dated:    1 June 2023