Goyal v Minister for Immigration and Border Protection

[2019] FCA 170

FEDERAL COURT OF AUSTRALIA

Goyal v Minister for Immigration and Border Protection [2019] FCA 170

Appeal from:

Goyal v Minister for Immigration\ [2018] FCCA 2392

File number(s):

VID 1168 of 2018

Judge(s):

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)

Migration Act 1958 (Cth)

Federal Court Rules 2011, r 36.75

Cases cited:

Goyal v Minister for Immigration & Anor [2018] FCCA 2392

Singh v Minister for Immigration [2018] FCCA 3423

Date of hearing:

5 February 2019

Date of last submissions:

29 January 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Appellant:

The appellant did not appear

Counsel for the Defendants:

MR C. Tran

Solicitor for the Defendants:

Clayton Utz

ORDERS

VID 1168 of 2018

BETWEEN:

SUNIL GOYAL

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

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:

1. This is an appeal from orders of the Federal Circuit Court of Australia made on 31 August 2018: Goyal v Minister for Immigration & Anor [2018] FCCA 2392. The primary judge dismissed the appellant’s application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal on 11 August 2016.  The Tribunal had affirmed a decision of the first respondent, the Minister for Immigration and Border Protection, by his delegate, to refuse to grant the appellant a Student Temporary (Class TU) (Subclass 572) visa under the Migration Act 1958 (Cth).

2. The appellant has not appeared 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.   

3. Counsel for the Minister tendered two documents which indicated that notice of the hearing had been given to the appellant.  The first document was an email from the Court to the appellant dated 4 January 2019, notifying the appellant of the hearing date and time.  The second document was an email from the Minister’s legal representatives dated 29 January 2019 to the appellant at the same email address, attaching the Minister’s submissions and also informing the appellant of the date and time of today’s hearing.  Accordingly, I am satisfied that the appellant received notice of the hearing today. 

4. Counsel for the Minister sought orders on that the appeal 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 before the Court to prosecute the appeal. That power is also given under r 36.75 of the Federal Court Rules 2011.  I shall make orders dismissing the appeal with costs pursuant to those powers.

5. It is not necessary for the Court to decide the merits of the appeal.  However, I note that the detailed written submissions filed on behalf of the Minister provide cogent answers to the various grounds of appeal.  The Minister’s written submissions were reiterated in concise oral submissions by Mr Tran who appeared on his behalf.  The Minister’s submissions also addressed an issue that was not considered by the Circuit Court, namely the significance of Singh v Minister for Immigration [2018] FCCA 3423, as that decision was made after the decision of the primary judge. It is unnecessary for me to express any opinion concerning this issue.

6. The appeal is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou.

Associate:

Dated:       19 February 2019