Azhar v Minister for Home Affairs
[2019] FCA 1819
•5 November 2019
FEDERAL COURT OF AUSTRALIA
Azhar v Minister for Home Affairs [2019] FCA 1819
Appeal from: Application for extension of time: Azhar v Minister for Home Affairs [2019] FCCA 1422 File number: WAD 324 of 2019 Judge: JACKSON J Date of judgment: 5 November 2019 Legislation: Migration Act 1958 (Cth) s 116
Federal Court Rules 2011 (Cth) r 35.33
Date of hearing: 5 November 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Mr PR Macliver Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 324 of 2019 BETWEEN: HAFIZ MUHAMMAD UZAIR AZHAR
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JACKSON J
DATE OF ORDER:
5 NOVEMBER 2019
THE COURT ORDERS THAT:
1.Pursuant to rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for an extension of time is dismissed.
2.The applicant must pay the first respondent's costs, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
This is an application for an extension of time within which to appeal from a decision of the Federal Circuit Court of Australia. That court dismissed the applicant's application for judicial review from a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to cancel the applicant's Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. The visa was cancelled because the applicant failed to comply with a condition imposed on the visa under the Migration Regulations 1994 (Cth), relevantly requiring him to maintain enrolment in a registered course.
While the applicant had completed certain registered courses, and had been enrolled in at least one further registered course as well as a Certificate III in Commercial Cookery course, his enrolment in each of the latter two courses was cancelled on 5 May 2016 for unsatisfactory attendance. A delegate of the Minister accordingly cancelled the applicant's visa under s 116(1)(b) of the Migration Act 1958 (Cth). The applicant applied for review to the Tribunal, which affirmed the delegate's decision. The applicant applied for judicial review to the Federal Circuit Court, which, as I have said, dismissed the application. He then sought an extension of time to appeal to this court. He needed an extension because he tried to file his notice of appeal in this court seven days out of time.
The applicant has not appeared at the hearing today. The court officer has called outside the courtroom for the applicant three times, and has made a search of the immediate surroundings of the courtroom. There is no sign of the applicant. My chambers emailed the applicant on 24 October 2019 noting that he had failed to file any outline of written submissions within the time required by orders that the court had previously made, and informing him of the possible consequences if he did not appear at the hearing. A similar communication was made with the applicant on 29 October 2019. So the applicant has had notice of this hearing time and date and the possible consequences for him if he does not appear at the hearing.
In the circumstances, the Minister has applied under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) for an order that the application for an extension of time within which to appeal is dismissed. The fact that the applicant has had notice of the hearing and the fact that he has not appeared, and has not sought to give any explanation for his non-appearance or applied for an adjournment of the hearing if necessary, are relevant factors weighing in favour of the discretion to dismiss the application.
Another matter which is relevant is the merits of the application itself. The applicant has not provided any satisfactory explanation for his delay, admittedly a short one, in attempting to lodge his notice of appeal. The only explanation he gave in his affidavit in support of the application was that he 'was not provided with the detailed statement of facts based on which the orders were passed and due to which I was unable to lodge the application in statutory time frame'. But the applicant was present when the primary judge gave his reasons orally, and in any event those reasons were published nine days before the expiry of the deadline for appealing.
As to the merits of the proposed appeal, the proposed grounds merely repeat the grounds of review in the Federal Circuit Court with the additional assertion that, 'I believe my case was not addressed properly and the decision maker made an error'. They do not purport to identify any error in the decision of the primary judge. In circumstances where the applicant has not appeared at this hearing, it is not for this court to speculate as to whether or not there might have been any such error, or as to whether there is any merit in the grounds of appeal which does not appear on the face of the grounds as I described them. This lack of merit in the grounds is another matter which is relevant to the discretion to dismiss for want of appearance.
In all the circumstances, I will make the order sought by the Minister. It will be open to the applicant to apply under r 35.33(2) of the Federal Court Rules for an order setting aside the order dismissing his application.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson. Associate:
Dated: 6 November 2019
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