Bilawal v Minister for Immigration, Citizenship and Multicultural Affairs

[2018] FCA 1920

FEDERAL COURT OF AUSTRALIA

Bilawal v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1920

Appeal from:	Biliwal v Minister for Immigration & Anor [2018] FCCA 1504
File number:	NSD 1136 of 2018
Judge:	ALLSOP CJ
Date of judgment:	29 November 2018
Legislation:	Federal Court Rules 2011 (Cth), r 36.75
Date of hearing:	29 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	T Hillyard of Sparke Helmore

ORDERS

NSD 1136 of 2018

BETWEEN:

BILAWAL

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	29 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.The Minister serve upon the appellant these reasons when settled and when sent to the Minister.

THE COURT DIRECTS THAT:

3.The first respondent be named as the Minister for Immigration, Citizenship and Multicultural Affairs and the proceedings be so entitled.

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

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. This is an appeal against orders made by the Federal Circuit Court of Australia on 1 June 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 10 May 2016. The appellant is a citizen of Pakistan, who entered Australia in November 2012 as a holder of a student visa. It is not controversial that since that time up to the date on which the Federal Circuit Court delivered judgment, the appellant had not completed any studies.

2. In 2015, he applied for a Temporary Work (Skilled) (Subclass 457) visa and, two days later, applied for a Student (Subclass 573) visa. The applications for both were refused by a delegate of the Minister, on 9 and 15 October 2015 respectively.

3. I do not propose to deal with the matter in detail. That is because, on the calling of the matter on for hearing, there was no appearance by Mr Bilawal.

4. On Tuesday evening, at 11.32 pm, Mr Bilawal sent to New South Wales District Registry an email that said:

   Hi, please find the attachments below.

5. The "attachments below" were two documents. One was a letter from Kareela Village Medical Centre in Kareela, New South Wales, from a doctor referring Mr Bilawal to a psychiatrist in Liverpool. The referral of the doctor in Kareela was for an opinion and management of what was said to be Mr Bilawal’s “worsening anxiety and depression over [the] last two years”. The letter was dated 27 November, that is, Tuesday this week. It indicated that he was taking “no regularmedication”. On the same day, the doctor in Kareela also gave a medical certificate to the following effect:

   Mr Bilawal Bilawal has been unwell on and off with Anxiety & Major Depression for [the] last 2 years. Recently, [he] has another flare up of his Anxiety & Depression. He has tried antidepressant medications in the past with minimal effecet [sic]. Considering his current condition, i [sic] believe it will be best to see a Psychiatrist for further review.

   I believe he has an appointment with Dept Of Immigration on the 29/11/2018 & he might not be in best mental condition to attend this interview at present.

6. I took the view yesterday, when this was drawn to my attention, that the correspondence could be characterised as an application for an adjournment. I considered yesterday, and I consider today, that the evidence does not warrant an adjournment. It certainly does not warrant the lack of appearance by the appellant today.

7. There are significant difficulties with the appellant's appeal. I do not propose to express a final view upon it. The appellant has not taken the opportunity to file any written submissions. He has been provided with a careful set of submissions, of seven pages, filed on behalf of the first respondent.

8. The application by the first respondent today is to have the appeal dismissed, under r 36.75 of the Federal Court Rules 2011 (Cth); in particular, r 36.75(1)(a)(i). I propose to make that order.

9. The appellant will have a right to seek to have the order set aside and the appeal, effectively, reinstated. For the appellant's benefit, I should say, if such application is to be made, the matter will be referred to me. I having spent some time familiarising myself with the facts. I have not formed the final view.

10. If the matter comes back to me, the court and judge time in this appeal will be minimised and I should indicate to the appellant, via these reasons, that if an application is to be made to set aside the dismissal of this appeal, I would expect not only that the appellant explain why he was not in a position to come today, but I would also require him to persuade me, through prior written submissions or through submissions made orally, or both, that there is some merit in the appeal proceeding. The best way to deal with this, for the appellant, is to engage with the submissions of the first respondent. The rules and the principles, as to setting aside an order made in his absence, are such that he will have to persuade the court that there is some merit in the appeal and in the arguments to contradict the Minister's submissions.

11. So the orders that I make are:

    (1)The appeal be dismissed with costs under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

    (2)The first respondent serve upon the appellant these reasons when settled and when sent to the Minister.

    (3)The first respondent be named as the Minister for Immigration, Citizenship and Multicultural Affairs and the proceedings be so entitled.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:     

Dated:        29 November 2018