Shrestha v Minister for Immigration and Border Protection
[2018] FCA 1331
•24 August 2018
FEDERAL COURT OF AUSTRALIA
Shrestha v Minister for Immigration and Border Protection [2018] FCA 1331
Appeal from:
Application for leave to appeal: Rohit Schrestha v Minister for Immigration and Border Protection & Anor [2018] FCCA 167 File number(s): VID 2 of 2018 Judge(s): MIDDLETON J Date of judgment: 24 August 2018 Legislation: Federal Court of Australia Act 1976 (Cth) Date of hearing: 24 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent Mr C Tran Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 2 of 2018 BETWEEN: ROHIT SHRESTHA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
24 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the costs of the first respondent of and in connection with the application for leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
Rohit Shrestha, (the ‘Applicant’) seeks leave to appeal from a judgment of the Federal Circuit Court. The Federal Circuit Court ordered that this application for judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) be dismissed. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Border Protection (the ‘Minister’).
This application for leave to appeal was in response to orders made by the Federal Circuit Court on 11 December 2017 dismissing the Applicant’s application for judicial review under rule 14.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the ‘Rules’). The order made under rule 44.12(1)(a) was an interlocutory one. Accordingly, the Applicant applied for leave to appeal pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (the ‘Act’).
The Applicant did not file a proposed notice of appeal and the grounds stood as the grounds of application filed on 3 January 2018 as proposed grounds of appeal. I do not need to detail these proposed grounds of appeal in the circumstances which have occurred.
The application was called on for hearing this afternoon at 2.15 pm. The Applicant did not appear. The Minister applied to have the application dismissed. I have before me evidence that the Applicant was provided with the Minister’s written submissions and was advised that the application would be listed for hearing on 24 August 2018 at 2.15 pm before the Court and was advised that the Minister may seek to have the application dismissed with costs for non-appearance.
The Court has had no communication with the Applicant and there has been no attempt to seek an adjournment or provide an explanation for non-attendance.
The Court has power under section 25(2B)(bb)(ii) (read in conjunction with section 25(2BA)) of the Act to make an order that an application for leave to appeal to the Court be dismissed for failure of the applicant to attend a hearing relating to that application. There is also power under the Rules of Court to dismiss an application where there is non-attendance: see rule 35.33.
It is still a matter of the Court’s discretion whether to avail itself of the power to act in these circumstances. However, I see no reason to not exercise the power in favour of the Minister in the circumstances that have arisen, and I propose to do so.
I will not proceed to finally consider and determine the arguments that have been raised by the Minister in response to the grounds of application filed in this matter.
However, I do make these observations. First, the grounds raised in the application for judicial review are very broad and vague, and essentially invite merits review. This is not the function of this Court to undertake merits review. Secondly, on the basis of the submissions of the Minister and having regard to a review of the file, I do not see any of the grounds in the application as having any prospect of success.
The Court orders that:
(1)The application for leave to appeal be dismissed; and
(2)The Applicant pay to costs of the Minister of and in connection with the application for leave to appeal.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 30 August 2018
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