FEDERAL COURT OF AUSTRALIA
Biriasar v Minister for Immigration and Border Protection [2017] FCA 1291
Appeal from: Biriasar v Minister for Immigration [2017] FCCA 1005 File number: VID 533 of 2017 Judge: PAGONE J Date of judgment: 6 November 2017 Catchwords: MIGRATION – appeal from judgment and orders of Federal Circuit Court - no appearance by the appellant – rule 36.75 – appeal dismissed Legislation: Migration Act 1958 (Cth) Date of hearing: 6 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 3 Counsel for the Appellant: The appellant did not appear Counsel for the Respondent: Mr B Petrie Solicitor for the Respondent: Sparke Helmore ORDERS
VID 533 of 2017 BETWEEN: DHARMA RAM BIRIASAR
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
6 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to r 36.75 with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an appeal from the judgment and orders of the Federal Circuit Court delivered by Judge McNab on 9 May 2017 which affirmed the decision of a delegate of the Minister for Immigration and Border Protection dated 18 June 2015 pursuant to s 65 of the Migration Act 1958 (Cth) (the Act) to refuse the appellant’s application for Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (“the Visa”)
The appellant is an Indian national who applied for the Visa on 13 November 2014. It was a criteria for the grant of the visa that he had an approved nomination from an employer. The appellant’s prospective employer had sought an approved nomination for the appellant but that application was not successful. He was notified on 18 June 2015 that his application for a visa was consequently also not successful.
The appeal was listed for hearing on 6 November 2017 but there was no appearance by the appellant. In those circumstances, the Minister applied for orders under r 36.75 to the effect that the appeal be dismissed with costs in the absence of the party. The Minister, by letter and email dated 30 October 2017, had confirmed to the appellant that the matter had been listed for hearing on 6 November 2017 at 10.15, and had informed the appellant that orders would be sought dismissing his application with costs if he did not attend the hearing. In those circumstances, the appeal will be dismissed with costs, pursuant to r 36.75.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 6 November 2017
- AGLC
- Biriasar v Minister for Immigration and Border Protection [2017] FCA 1291
- Case
- [2017] FCA 1291
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Federal Circuit Court had properly exercised its discretion under the Migration Act 1958, and whether there were any errors in the court's interpretation of the evidence. The court also considered whether Biriasar's absence during the appeal proceedings should result in the dismissal of the appeal under rule 36.75 of the Federal Court Rules 2011.
The court found that Biriasar had failed to appear for the appeal, and that there were no exceptional circumstances to justify his absence. The court held that Biriasar had not provided any valid reason for his non-appearance, and that his failure to attend constituted a significant procedural irregularity. Consequently, the court exercised its discretion to dismiss the appeal under rule 36.75, with costs awarded to the respondent. The court also noted that it was not necessary to address the substantive merits of the appeal, given the appellant's failure to participate in the proceedings.
Orders
Orders of the court
1. The appeal be dismissed pursuant to r 36.75 with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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