Cherukure v Minister for Immigration and Border Protection
[2019] FCA 252
•26 February 2019
FEDERAL COURT OF AUSTRALIA
Cherukure v Minister for Immigration and Border Protection [2019] FCA 252
Appeal from: Application for extension of time: Cherukure v Minister for Immigration & Anor [2018] FCCA 1886 File number: VID 990 of 2018 Judge: PERRY J Date of judgment: 26 February 2019 Date of publication of reasons: 28 February 2019 Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Date of hearing: 26 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr C J Tran Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 990 of 2018 BETWEEN: JAGADISH CHERUKURE
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
26 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application is summarily dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), read together with s 25(2BA), and r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.The applicant is to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)PERRY J:
The applicant, Mr Jagadish Cherukure, is a citizen of India. He seeks an extension of time within which to appeal from a decision of the Federal Circuit of Australia (the FCC) given on 20 July 2018. By that decision, the FCC dismissed the application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), dated 12 January 2016. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (the visa) to pursue his studies in Australia.
The applicant appeared without legal representation before the primary judge and was unrepresented on this application.
The applicant requires an extension of time within which to seek leave to appeal. In this regard, the time limit for making an application for leave to appeal is 21 days after the judgment below was pronounced or on or before a date fixed by the Court below (r 36.03, Federal Court Rules 2011 (Cth) (FCA Rules)). There having been no other date fixed within which an appeal might be instituted, the time limit for making the application ended on 10 August 2018. Accordingly, as the applicant’s application was filed on 15 August 2018, an extension of 5 days is required.
The application for an extension of time was called on for hearing on 26 February 2018 at approximately 2.20pm. The applicant did not appear. The matter was called outside the courtroom three times and there was still no appearance for the applicant. An attempt was made to contact the applicant on the mobile telephone number provided by him in his application for an extension of time but the call rang out to voicemail. In the circumstances, the Court waited until approximately 2.32pm before resuming the hearing.
In the circumstances, the Minister applied for the appeal to be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) read with s 25(2BA) and r 35.33 of the FCA Rules for non-appearance and made brief oral submissions in support of that application.
I agree that the appeal should be dismissed under these provisions by reason of the applicant’s failure to attend when the applicant was called on today. In reaching this view, I have had regard to a number of factors in addition to his failure to attend.
First, the applicant did not file any written submissions in support of his application despite orders made by the Registrar on 13 September 2018 providing that the applicant is to file and serve a written outline of submissions no later than 10 business days before the hearing date.
Secondly, a copy of the orders made by the Registrar, together with relevant practice notes and a guide to preparing submissions for a hearing in the Federal Court, were sent by the Minister’s legal representatives to the applicant by email and by post under cover of a letter dated 11 January 2019. A copy of that covering letter was relied upon by the Minister in support of his application for summary dismissal. Importantly, the letter also advised that “[t]his matter will be listed for hearing before Perry J on Tuesday, 26 February 2019 at 2.15pm.”
Furthermore, the National Operations Team, Federal Court of Australia, sent an email on 10 January 2019 to the parties including to the applicant at the email address given by him in his application for an extension of time. That email advised that the matter was listed for hearing at 2.15pm on 26 February 2019 at the Law Courts Building, 305 William Street, Melbourne. The email further advised that:
The courtroom allocated for this matter will be displayed on a notice board at the Federal Court on the day of the hearing or is available on the Daily Court Lists from late in the afternoon the day before the hearing.
Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.
The email also provided a telephone number by which the National Operations Team could be contacted in the event of any queries.
In these circumstances, I accept the submission by the Minister that the applicant has been given adequate notice of the hearing today on 26 February 2019.
Thirdly, when the appeal was called on this morning, the Court Officer called the matter outside the courtroom three times but there was no appearance by the applicant. As I have earlier mentioned, an attempt was made to contact the applicant on the mobile telephone number provided by him in his application for an extension of time, but there was no answer and the call went to voicemail. The matter was stood down briefly in order to afford the applicant time to attend if he was running late or having difficulties in finding the courtroom. I further note in this regard that the Court Officer made inquiries of the Registry to check whether the applicant had attended the Registry today.
Fourthly, while the Minister also submitted that the proposed grounds of appeal did not raise an arguable case, he accepted that that was a consideration which could be given only limited weight in the circumstances where the applicant had not been heard on the merits of his application.
Finally, I have had regard to the entitlement of the applicant to apply under s 25(2B)(bc) of the FCA Act and r 35.33(2) of the FCR for the order dismissing the application for an extension of time under s 25(2B)(bb)(ii) to be varied or set aside. Whether or not any such application succeeded would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the applicant’s failure to attend the hearing today and the strength of his case on the proposed appeal if the order dismissing the application for an extension of time were to be set aside.
For these reasons, the application should be summarily dismissed under s 25(2B)(bb)(ii) of the FCA Act and r 35.33 of the FCA Rules, with costs as agreed or assessed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 28 February 2019
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