Sardar v Minister for Immigration and Border Protection

[2018] FCA 1553

FEDERAL COURT OF AUSTRALIA

Sardar v Minister for Immigration and Border Protection & Anor [2018] FCA 1553

Appeal from:	Sardar v Minister for Immigration & Anor [2018] FCCA 586
File number:	NSD 469 of 2018
Judge:	YATES J
Date of judgment:	15 October 2018
Catchwords:	MIGRATION – appeal from judgment of Federal Circuit Court – student visa –  failure to appear by appellant – appeal dismissed
Legislation:	Federal Court Rules 2011 (Cth), r 36.75
Date of hearing:	15 October 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	Ms S Zarucki of Clayton Utz
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

NSD 469 of 2018

BETWEEN:

MD ABDUL GAFUR SARDAR

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	15 OCTOBER 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

YATES J:

1. This appeal was originally listed for hearing on 27 August 2018.  On the morning of 27 August 2018, the Court and the first respondent, the Minister for Immigration and Border Protection (the Minister), received notification that the appellant, Mr Sardar, was unable to attend Court because he was suffering chest pain and had been admitted to hospital.  On that day, I formed the view that the appropriate course was to adjourn the hearing of the appeal to another day, being today 15 October 2018.  At that time, I was reluctant to proceed because, at least prima facie, the evidence indicated that the appellant was in hospital and had been recently admitted.  At that time, I was not surprised that there was no medical certificate available. 

2. Mr Sardar was advised of today’s hearing by email from the Minister’s solicitors on 27 August 2018.  Between that time and 3.59 am this morning, there has been no communication from the appellant.  However, at 3.59 am this morning, the Minister’s solicitors received an email from the appellant stating that he would not be able to attend the hearing “tomorrow morning” due to “unfit my health condition”.  The email referred to an attached file with medical certificate.  There was no attached file, but the medical certificate, which is dated 14 October 2018, simply states that Mr Sardar “has a medical condition and will be unfit for work from 14 October 2018 to 19 October 2018 inclusive”. 

3. I do not regard this to be sufficient evidence of any inability of the appellant to attend today’s hearing for medical reasons.

4. In the absence of his attendance, I propose to move under rule 36.75 of the Federal Court Rules 2011 (Cth) and dismiss the appeal.

5. The appeal will be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:  

Dated:        16 October 2018