Nadeem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1498

Nadeem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1498

The applicant provided insufficient evidence to justify an adjournment: the medical certificate concerned another person, did not explain why the applicant could not attend or participate in the hearing, and was inconsistent with evidence indicating the applicant was in Australia. The applicant had sufficient notice of the hearing, did not appear when the matter was called, and provided no satisfactory reason for non-appearance. In those circumstances, and having regard to the weak prospects of the proposed appeal, the Court refused the adjournment and dismissed the application for leave to appeal under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

Jurisdiction
Australia
Judgment Date
29 November 2023
Procedural Posture
Migration Application for Leave to Appeal From Interlocutory Orders Dismissing an Application to Reinstate Judicial Review Proceedings / Hearing of Application for Leave to Appeal; Adjournment Refused and Application Dismissed for Absence of the Applicant
Outcome
Application for adjournment refused; application for leave to appeal dismissed; applicant ordered to pay the first respondent's costs.
Legal Topics
['student Visa Refusal' 'judicial Review' 'leave to Appeal' 'adjournment' 'dismissal for Non Appearance' 'reinstatement of Proceedings']
['migration Law' 'administrative Law' 'civil Procedure'] ['student Visa Refusal' 'judicial Review' 'leave to Appeal' 'adjournment' 'dismissal for Non Appearance' 'reinstatement of Proceedings']

Case Brief

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Procedural Posture

Migration Application for Leave to Appeal From Interlocutory Orders Dismissing an Application to Reinstate Judicial Review Proceedings / Hearing of Application for Leave to Appeal; Adjournment Refused and Application Dismissed for Absence of the Applicant

Legal Issues

  1. 1 ['Whether the hearing of the application for leave to appeal should be adjourned for 6 to 8 weeks.' 'Whether the application for leave to appeal should be dismissed because the applicant was absent when the matter was called on for hearing.' 'Whether the proposed appeal from the Federal Circuit Court orders had sufficient prospects to justify leave to appeal.']

Ratio Decidendi

The applicant provided insufficient evidence to justify an adjournment: the medical certificate concerned another person, did not explain why the applicant could not attend or participate in the hearing, and was inconsistent with evidence indicating the applicant was in Australia. The applicant had sufficient notice of the hearing, did not appear when the matter was called, and provided no satisfactory reason for non-appearance. In those circumstances, and having regard to the weak prospects of the proposed appeal, the Court refused the adjournment and dismissed the application for leave to appeal under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

Court Disposition

Application for adjournment refused; application for leave to appeal dismissed; applicant ordered to pay the first respondent's costs.

Orders

  • ['The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.' 'Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for leave to appeal be dismissed.' "The applicant pay the first respondent's costs."]