Venkata v Minister for Immigration and Border Protection
[2016] FCA 1427
•21 November 2016
FEDERAL COURT OF AUSTRALIA
Venkata v Minister for Immigration and Border Protection [2016] FCA 1427
Appeal from: Application for extension of time: Bapatla Venkata v Minister for Immigration & Anor [2016] FCCA 2161 File number: VID 942 of 2016 Judge: LOGAN J Date of judgment: 21 November 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – student visa – application for an extension of time to seek leave to appeal – no appearance by applicant – where applicant communicated with Registry on morning of proceeding to advise he was sick and would not appear – applicant did not provide medical certificate – no proper reason for non-appearance – Court has discretion to dismiss application for failure to appear – application dismissed for want of prosecution Legislation: Migration Act 1958 (Cth) s 116 Date of hearing: 21 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant: The applicant did not appear Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 942 of 2016 BETWEEN: RADHA KRISHNA MURTHY BAPATLA VENKATA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
21 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application for an extension of time and related leave to appeal is dismissed.
2.The applicant is to pay the first respondent’s costs of and incidental to the application for an extension of time and related leave to appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Today was the day appointed for the hearing of an application for an extension of time and related leave to appeal in respect of a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) given on 13 July 2016. By that judgment, the Federal Circuit Court dismissed an application for the judicial review of a decision of the Migration Review Tribunal, as it then was, to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant to the applicant a Student (Class TU)(Subclass 573 Higher Education Section) Visa, under s 116(1)(b) of the Migration Act 1958 (Cth).
Upon the application being called on at the appointed time this morning for hearing, there was no appearance by or on behalf of the applicant at the Bar table. There was an appearance on behalf of the Minster by counsel. The name of the proceeding was called three times in the public area at my direction, with the resultant report confirming a non-appearance by or on behalf of the applicant. That non-appearance, in turn, confirmed a position apprehended as a result of a communication made by the applicant to an officer of the registry at or about 10.12 am this morning. In the course of that telephone conversation, a report of which has become exhibit 1, the applicant advised that he was sick and, further, that he had forgotten about this morning’s court appearance. He further advised that he did not propose to obtain a medical certificate.
An exercise of the judicial power of the Commonwealth, such as the hearing of the present application, entails an obligation to afford the parties procedural fairness. Part of that obligation is the extension of an opportunity to be heard. It is necessary to emphasise “opportunity”. It is no part of the obligation of procedural fairness that the Court is unable to proceed in the event that one or the other party chooses not to avail of the opportunity extended. That is the present case, so far as the applicant is concerned.
The rules recognise this by providing for the dismissal of a proceeding, in the event of a failure to appear. Such dismissal is not automatic but requires the exercise of a discretion. In this instance, the applicant has chosen to give no detail whatsoever as to the affliction from which he claims to be suffering. Whether it is overwhelming or transient is unknown. Quite when he might recover is unknown. Indeed, there is no sworn evidence or affirmed evidence at all as to the nature of the affliction. It is apparently not severe enough to prevent his communicating telephonically with an officer of the registry. More than that, it is not possible to say on the evidence to hand.
Further, it appears that the applicant has just not attended to the notification that today was the appointed day with sufficient diligence. He has just forgotten about it.
There is always an opportunity cost in respect of the adjournment of a case, in the sense that on the adjourned date, a case which might otherwise be heard is not heard. The applicant has not, in terms, sought an adjournment, but I have nonetheless considered that option. In my view, this is not a case where the application ought to be adjourned. The applicant has adopted a very casual attitude indeed to the prosecution of his application. There is no sufficient detail, indeed no detail at all, as to his claim to affliction.
In short, I see no foundation for an adjournment, only a failure to prosecute the application. For these reasons, the application will be dismissed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 25 November 2016
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