Kumar v Minister for Immigration and Border Protection [2014] FCA 819

Kumar v Minister for Immigration and Border Protection [2014] FCA 819

The adjournment application was refused because it was made very late, the appellant had a history of non-attendance on asserted medical grounds, and the evidence showed at most a painful left shoulder and incapacity for taxi-driving work, not inability to attend or participate in the hearing. As the appellant was absent when the appeal was called on and there was no evidence of real prejudice because he still had not provided evidence satisfying the English language competence criterion, the Court dismissed the appeal under r 36.75.

Jurisdiction
Australia
Judgment Date
04 August 2014
Procedural Posture
Migration Appeal From Dismissal of Judicial Review Application / Appeal Hearing and Interlocutory Application for Adjournment; Appellant Absent
Outcome
Appeal dismissed; adjournment refused.
Legal Topics
['skilled Graduate (temporary) Class VC (subclass 485) Visa' 'english Language Competence Criterion' 'adjournment on Medical Grounds' 'dismissal of Appeal for Non Attendance']
['migration' 'practice and Procedure'] ['skilled Graduate (temporary) Class VC (subclass 485) Visa' 'english Language Competence Criterion' 'adjournment on Medical Grounds' 'dismissal of Appeal for Non Attendance']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review Application / Appeal Hearing and Interlocutory Application for Adjournment; Appellant Absent

Legal Issues

  1. 1 ["Whether the hearing should be adjourned on the appellant's asserted medical grounds arising from a car accident, shoulder injury and post-traumatic stress disorder." 'Whether the appeal should be dismissed under Federal Court Rules 2011 r 36.75 because the appellant was absent when the appeal was called on for hearing.' 'Whether dismissal would cause real prejudice given the appellant had not provided evidence that he could satisfy the English language competence criterion.']

Ratio Decidendi

The adjournment application was refused because it was made very late, the appellant had a history of non-attendance on asserted medical grounds, and the evidence showed at most a painful left shoulder and incapacity for taxi-driving work, not inability to attend or participate in the hearing. As the appellant was absent when the appeal was called on and there was no evidence of real prejudice because he still had not provided evidence satisfying the English language competence criterion, the Court dismissed the appeal under r 36.75.

Court Disposition

Appeal dismissed; adjournment refused.

Orders

  • ['The appeal be dismissed.' "The appellant is to pay the first respondent's costs fixed in the sum of $2,178."]