Prashar v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1573

PRACTICE & PROCEDURE – appeal from Judge of Court to Full Court – where appellants absent when appeal called on for hearing before Full Court – where Full Court made order that appeal be dismissed with costs – whether appellants have implied entitlement to move Full Court to set aside order – where implied entitlement depends on hearing having proceeded in appellants’ absence – whether consideration relevant to Full Court’s discretion to set aside order acceptable explanation for appellants’ absence – whether consideration relevant to Full Court’s discretion to set aside order strength of appellants’ case had appeal proceeded – whether Full Court prepared to consider strength of appellants’ case should appeal now proceed – whether motion to set aside order should fail where appellants’ case not reasonably arguable regardless of explanation for absence.

Federal Court Rules O 52 r 38A

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1119 referred to
Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 referred to
Bilgin v Minister for Immigration  & Multicultural Affairs (1997) 149 ALR 281 referred to

POOJA PRASHAR & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 174 of 2001

BRANSON, MANSFIELD & KATZ JJ
7 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 174 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

POOJA PRASHAR
FIRST APPELLANT

VIKAS PRASHAR
SECOND APPELLANT

KARAN PRASHAR
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

BRANSON, MANSFIELD & KATZ JJ

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appellants’ motion be dismissed.

2.The appellants pay the respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 174 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

POOJA PRASHAR
FIRST APPELLANT

VIKAS PRASHAR
SECOND APPELLANT

KARAN PRASHAR
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	BRANSON, MANSFIELD & KATZ JJ
DATE:	7 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. BRANSON J:   I agree with the reasons for judgment about to be given by Katz J and with the orders to be proposed by his Honour, but I think it appropriate to add two matters.

2. The first is that the Court did not hear submissions as to the proper construction of O 52 r 38A of the Federal Court Rules.  In particular, it was not contended by the Minister that the motion before the Court was bound to fail as the original Full Court hearing did not “proceed” (see O 52 r 38A(2)).

3. The second matter is that the concern of this Court, both at first instance and on appeal, has been with whether the decision of the Refugee Review Tribunal…