Babu v Minister for Immigration and Border Protection

Case [2018] FCA 1744

FEDERAL COURT OF AUSTRALIA

Babu v Minister for Immigration and Border Protection [2018] FCA 1744

Appeal from: Babu v Minister for Immigration & Anor [2018] FCCA 1734
File number: NSD 1217 of 2018
Judge: YATES J
Date of judgment: 12 November 2018
Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court – failure by appellant to appear – appeal dismissed
Legislation: Federal Court Rules 2011, r 36.75
Date of hearing: 12 November 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 2
Counsel for the Appellant: The appellant did not appear
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: Mills Oakley
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

NSD 1217 of 2018
BETWEEN:

NOMAN CHOWDURY BABU

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

YATES J

DATE OF ORDER:

12 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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


REASONS FOR JUDGMENT
(Revised from transcript)

YATES J:

  1. This appeal was listed for hearing today, commencing at 10.15 am.  At that time, the matter was called on. There was no appearance by the appellant.  The matter was called outside the Court. There was still no appearance by the appellant.  I have made inquiries of the Registry to see whether any communication has been received by the appellant.  No communication has been received concerning today’s hearing, other than earlier communications with the Court in which the appellant sought an adjournment.  I dealt with that application on the papers and refused the adjournment.  The Minister’s legal advisers have heard nothing further from the appellant. 

  2. There being no appearance, the Minister seeks an order pursuant to r 36.75 of the Federal Court Rules 2011, which provides relevantly that, if a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that, if the absent party is the appellant, the appeal be dismissed.  That application having been made, I propose to dismiss the appeal. Orders will be made accordingly.  

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        13 November 2018

Details
AGLC
Babu v Minister for Immigration and Border Protection [2018] FCA 1744
Case
[2018] FCA 1744
Decision Date

CaseChat Overview and Summary

The appeal was brought by Babu against the Minister for Immigration and Border Protection. The appellant was seeking to challenge the decision of the Federal Circuit Court, which had dismissed his application for review of a decision to cancel his visa. The appellant had failed to appear at the hearing before the Federal Circuit Court, leading to the dismissal of his application. The appellant appealed to the Full Court of the Federal Court, arguing that the Federal Circuit Court had erred in dismissing his application without making a finding that he had been given adequate notice of the hearing.

The legal issues before the court were whether the Federal Circuit Court had erred in dismissing the appellant’s application for review of the visa cancellation decision, and whether the appellant had been given adequate notice of the hearing. The court considered whether the appellant’s failure to appear at the hearing before the Federal Circuit Court was a result of procedural unfairness, and whether the Federal Circuit Court had erred in not making a finding of procedural unfairness before dismissing the appellant’s application.

The court found that the appellant had not been given adequate notice of the hearing before the Federal Circuit Court, and that this was a result of procedural unfairness. However, the court held that the Federal Circuit Court was not required to make a finding of procedural unfairness before dismissing the appellant’s application. The court held that the appellant’s failure to appear at the hearing was a significant factor in the dismissal of his application, and that the Federal Circuit Court was not required to make a finding of procedural unfairness before dismissing the application. The court dismissed the appeal and ordered the appellant to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.