Malla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1024

Malla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1024

The Court dismissed the application because the applicants failed to appear and the proposed appeal was doomed to fail: the first applicant answered "No" to having applied for an Australian Federal Police check in the preceding 12 months, so the visa application was not accompanied by the necessary evidence required by cl 485.213, leaving the Tribunal with no power or discretion to grant the visas, and the primary judge had correctly dismissed the grounds raised below.

Jurisdiction
Australia
Judgment Date
17 August 2022
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal / Application Dismissed After Applicants Failed to Appear at Hearing
Outcome
Application for extension of time and leave to appeal dismissed with costs; first respondent's name amended.
Legal Topics
['extension of Time and Leave to Appeal' 'dismissal for Non Appearance' 'subclass 485 Visa' 'procedural Fairness' 'australian Federal Police Check Evidence']
['migration' 'administrative Law' 'federal Court Procedure'] ['extension of Time and Leave to Appeal' 'dismissal for Non Appearance' 'subclass 485 Visa' 'procedural Fairness' 'australian Federal Police Check Evidence']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal / Application Dismissed After Applicants Failed to Appear at Hearing

Legal Issues

  1. 1 ['Whether the application for extension of time and leave to appeal should be dismissed under r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth) because the applicants were absent when the proceeding was called on for hearing.' 'Whether the proposed appeal had sufficient prospects where the visa application was not accompanied by evidence that the first applicant had applied for an Australian Federal Police check during the 12 months immediately before the application was made.' 'Whether the Tribunal denied procedural fairness.']

Ratio Decidendi

The Court dismissed the application because the applicants failed to appear and the proposed appeal was doomed to fail: the first applicant answered "No" to having applied for an Australian Federal Police check in the preceding 12 months, so the visa application was not accompanied by the necessary evidence required by cl 485.213, leaving the Tribunal with no power or discretion to grant the visas, and the primary judge had correctly dismissed the grounds raised below.

Court Disposition

Application for extension of time and leave to appeal dismissed with costs; first respondent's name amended.

Orders

  • ['The application for extension of time and leave to appeal filed on 1 April 2020 be dismissed.' "The applicants pay the first respondent's costs of the proceeding, to be agreed or assessed." 'The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".']