FEDERAL COURT OF AUSTRALIA
Chahal v Minister for Home Affairs [2019] FCA 152
Appeal from: Chahal v Minister for Immigration & Anor [2018] FCCA 2349 File number: VID 1156 of 2018 Judge: ANASTASSIOU J Date of judgment: 19 February 2019 Catchwords: MIGRATION – application for judicial review – where appellant did not appear – rule 36.75 – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), 25(2B)(bb)(ii)
Federal Court Rules 2011, r 36.75
Cases cited: Chahal v Minister for Immigration & Anor [2018] FCCA 2349 Date of hearing: 8 February 2019 Date of last submissions: 31 January 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 5 Counsel for the Appellant: Appellant did not appear Counsel for the First Respondent:
MR C. McDermott
Solicitors for the First Respondent:
Mills Oakley
Counsel for the Second Respondent:
The second respondent filed a submitting notice of appearance save as to costs
ORDERS
VID 1156 of 2018 BETWEEN: PARDEEP SINGH CHAHAL
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ANASTASSIOU J
DATE OF ORDER:
19 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)ANASTASSIOU J:
This is an appeal from orders of the Federal Circuit Court of Australia made on 24 August 2018: Chahal v Minister for Immigration & Anor [2018] FCCA 2349. The appellant applied to the Circuit Court for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal on 1 August 2016. The Tribunal had affirmed a decision of the Minister for Immigration and Border Protection, by his delegate, to cancel the appellant’s Student Temporary (Subclass 573) Higher Education Sector Visa. The relevant powers of the Minister for Immigration and Border Protection have since been given to the Minister for Home Affairs, who is now the first respondent to this appeal.
The appellant did not appear before the Court today to prosecute his appeal. I requested that the Minister’s instructing solicitor attempt to contact the appellant by telephone, however, the appellant did not answer the telephone call.
Counsel for the Minister tendered correspondence from the Minister’s legal representatives sent by post to the appellant’s address for service in Victoria. The correspondence from the Minister served the Minister’s submissions for this appeal, and confirmed the time and date of the hearing. Accordingly, I am satisfied that the appellant was given notice of the time and date for the hearing of the appeal.
Counsel for the Minister sought orders that the appeal be dismissed with costs on the grounds that the appellant did not appear to prosecute the appeal. The Court has power under sub-section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss an appeal where the appellant does not appear to prosecute the appeal. That power is also given under rule 36.75 of the Federal Court Rules 2011.
In the circumstances, it is appropriate that the appeal be dismissed with an order that the appellant pay the first respondent’s costs of the appeal.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou. Associate:
Dated: 19 February 2019
- AGLC
- Chahal v Minister for Home Affairs [2019] FCA 152
- Case
- [2019] FCA 152
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the absence of the appellant, who was represented by counsel, justified proceeding with the application in his absence, and whether the court should exercise its discretion under Rule 36.75 of the Federal Court Rules 2011 to hear the matter without the appellant being present. The court also had to consider whether the absence of the appellant constituted a failure to comply with procedural fairness and whether it should dismiss the application on that basis.
The court found that Chahal's absence without a satisfactory explanation did not constitute a valid reason to proceed with the application. The court noted that while the appellant was represented by counsel, the personal presence of the appellant in a judicial review matter was generally required to ensure procedural fairness. The court concluded that the absence without explanation was a significant procedural default and exercised its discretion under Rule 36.75 to dismiss the application. The court also found that the appellant's absence did not meet the threshold for exceptional circumstances that would warrant hearing the matter in his absence.
The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent. The court's decision was grounded in the importance of ensuring procedural fairness and the appellant's personal involvement in the judicial review process. The orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent.
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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