Rai v Minister for Immigration and Multicultural Affairs
[2025] FCA 247
•24 March 2025
FEDERAL COURT OF AUSTRALIA
Rai v Minister for Immigration and Multicultural Affairs [2025] FCA 247
Appeal from: Rai v Minister for Immigration & Anor [2020] FCCA 2265 File number: NSD 617 of 2021 Judgment of: ABRAHAM J Date of judgment: 24 March 2025 Catchwords: MIGRATION – student visa – application for extension of time to appeal a decision of the Federal Circuit Court of Australia – where the applicant failed to attend – where the applicant was given sufficient notice of the hearing – application dismissed for non-appearance Legislation: Federal Court Rules 2011 (Cth) r 36.75
Migration Regulations 1994 (Cth) cl 500.212
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 24 March 2025 Counsel for the Applicant: The applicant did not appear Solicitor for the First Respondent: Mr L Dennis of Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 617 of 2021 BETWEEN: SHARAN RAI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
24 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The applicant’s application for an extension of time to appeal be dismissed.
3.The applicant pay the first respondent’s costs, to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)ABRAHAM J:
The applicant, Mr Sharan Rai, is a citizen of Nepal who arrived in Australia on 7 March 2009 as the holder of a student (subclass 572) visa. On 13 March 2017, the applicant applied for a student (subclass 500) visa, which the delegate of the first respondent refused on 30 June 2017 on the basis that the delegate was not satisfied that the applicant met the requirements of cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth). The Administrative Appeals Tribunal affirmed the delegate’s decision on 16 October 2019. On 8 September 2020, the Federal Circuit Court of Australia dismissed an application for judicial review of that decision. This proceeding relates to an application for an extension of time to appeal the Federal Circuit Court judgment. The application was filed 261 days outside the specified time period for the filing of an appeal.
Although the applicant was legally represented before the Federal Circuit Court, the applicant in this proceeding is unrepresented.
The chronology of the matter following the Federal Circuit Court proceeding is as follows.
The applicant lodged an application for an extension of time to appeal the orders and judgment of the Federal Circuit Court, an accompanying affidavit and a draft notice of appeal on 24 June 2021. Directions orders were made by Registrar McCormick on 30 June 2021. The parties were notified of these orders by the Court via email that same day. The second respondent lodged a submitting notice on 2 July 2021.
On 27 July 2023, the Court notified the parties by email that it was considering listing the matter for hearing in November 2023. On 1 August 2023, the Court notified the parties that as that email was unable to be delivered to the applicant’s email address listed on file, the information contained in the email was sent to the applicant by email and post.
This matter was docketed to me on 13 December 2024.
The parties were notified by the Court via email on 16 December 2024 that the matter was listed for hearing before me at 9.30 am on 24 March 2025. Later that same day, the Court again sent the notice of listing to the parties and to the applicant’s alternate email address (as recorded on the Court’s file) as the earlier email could not be delivered to the applicant’s original email address.
On 17 December 2024, the Court sent an email to the parties (including the applicant’s two email addresses) indicating that: it received an undeliverable notification from the applicant’s first email address after sending the email on 16 December 2024; it had sent a copy of the notice of listing to the applicant’s second email address; out of an abundance of caution, posted a physical copy of the notice of listing to the applicant’s address for service; and requested the legal representatives for the first respondent to make enquiries with their client as to any updated contact details for the applicant.
On 11 March 2025, the Court followed up on the 17 December 2024 email. That email reminded the parties of the upcoming hearing, requested the first respondent provide an update on any efforts made to obtain updated contact details for the applicant and provided a copy of the applicant’s draft notice of appeal. In response, the first respondent informed the Court on 19 March 2025 that they emailed the applicant on the available email addresses, attempted to contact the phone number included in the applicant’s application but that it was disconnected, contacted their client to request any updated contact details and served hard copies of the relevant material at the applicant’s address for service.
From the correspondence attached to the first respondent’s email to the Court, I note that on 24 February 2025, the first respondent sent an email to the applicant (to his alternate email address) enclosing a copy of its submissions and an accompanying affidavit, reminded the applicant of the upcoming hearing and noted that the applicant is required to attend the scheduled hearing, failing which the first respondent foreshadowed it would seek to dismiss the application with costs. A further email was sent to the applicant’s two email addresses on 19 March 2025. In that email, the first respondent noted the matter is listed for hearing, requested the applicant to confirm his current contact details, indicated that they had attempted to contact the applicant by phone and email, and confirmed they would send, by express post, hard copies of the material in the matter at the applicant’s address for service that day. The first respondent also directed the applicant to complete a notice of address for service if his contact details needed to be updated.
In the almost four years since the proceeding was instituted, by the applicant, the applicant has not responded to any of the correspondence mentioned above, nor has the applicant taken any steps to progress his matter. He has not complied with the orders made for the preparation of the hearing (e.g. filing of the submissions). The last contact with the Court was the filing of the application for the extension of time, with the draft notice of appeal. The notice contains no grounds.
When the matter was called on for hearing at the time allocated, the applicant failed to appear.
I am satisfied the Court has taken all reasonable steps to notify the applicant of the hearing date on the contact details he had provided to it. The first respondent has also taken steps to do so.
In those circumstances, the appropriate course is to dismiss the appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).
The applicant’s application for an extension of time to appeal is dismissed, with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 24 March 2025
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