FEDERAL COURT OF AUSTRALIA Zafar v Minister for Immigration and Border Protection [2016] FCA 1345 Appeal from: Application for extension of time: Zafar v Minister for Immigration [2016] FCCA 1746 File number: VID 763 of 2016 Judge: LOGAN J Date of judgment: 14 November 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – application for an extension of time to seek leave to appeal – applicant in default for failing to appear before Federal Court – applicant in default for failing to file draft notice of appeal as per interlocutory direction – applicant failed to prosecute appeal – application dismissed PRACTICE AND PROCEDURE – default – application for an extension of time to seek leave to appeal – applicant in default for failing to appear before Federal Court – applicant in default for failing to file draft notice of appeal as per interlocutory direction – applicant failed to prosecute appeal – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Zafar v Minister for Immigration [2016] FCCA 1746 Date of hearing: 14 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 763 of 2016 BETWEEN: FAWAD ZAFAR Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 14 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time is dismissed. 2. The applicant is to pay the first respondent's costs of and incidental to the application, 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: 1 Today at 10.15 am is the appointed date and time for the hearing of an application for an extension of time by a Mr Fawad Zafar (Mr Zafar) within which to appeal against a judgment given in the Federal Circuit Court of Australia (Federal Circuit Court) on 17 June 2016, Zafar v Minister for Immigration [2016] FCCA 1746. The Federal Circuit Court had dismissed Mr Zafar's application for the judicial review of a decision of the then Migration Review Tribunal (Tribunal), affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) refusing to grant him a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth). 2 When, at the appointed time, the matter was called on for hearing, there was an appearance on behalf of the Minister. There was no appearance at the Bar table by or on behalf of Mr Zafar. At my direction, the name of the case was called three times in the public area by the court officer. The resultant report from the court officer confirmed the absence of an appearance by Mr Zafar. His absence may well be explained by a communication sent at 8.35 pm yesterday, i.e. Sunday 13 November 2016, wherein he states: Hello team. With reference to your email, i would like to inform you that i have been very unwell and would not be able to make up for hearing due to serious illness. I can provide you with my medical certificate. Thanks & regards, Fawad [sic] 3 No medical certificate was sent with this email. Further, a like assertion having earlier been made, as apparent from the exchange of email correspondence which is exhibit 1, Mr Zafar was materially informed by my associate that: Any such application you wish to make shall be heard in court, supported by any such evidence that you wish to rely on in support of that application. Please note that in the event of non-attendance by either party, orders will be made in the absence of that party. 4 The applicant first came to Australia on 28 December 2007 on a student visa. The record (in the form of the court book) before the Federal Circuit Court discloses that influential factors in the Tribunal's decision-making were a statement as to an intention with respect to permanent residence by Mr Zafar, as well as what the Tribunal regarded as unexplained gaps in between periods of study which had followed between Mr Zafar's first arrival in Australia and the time when, in 2015, the Tribunal came to make the decision, which then became subject to judicial review in the Federal Circuit Court. 5 In the absence of corroboration by a medical report, I am not satisfied as to the adequacy of the asserted reason for Mr Zafar's failure to attend at the date, time and place appointed for the hearing of his application. 6 I note, further, that the affidavit filed by Mr Zafar on 7 July 2016 did not have, as an annexure, a draft notice of appeal. Neither was a draft notice of appeal annexed to his application for an extension of time. By an order made on 22 July 2016, a registrar ordered that Mr Zafar file and serve a draft notice of appeal setting out particularised grounds of appeal within ten business days of the date of that order, if such a draft notice had not already been filed. Mr Zafar did not file any such draft notice of appeal within the period appointed. 7 In itself, that may not be a motivating factor for dismissal, as the nature of Mr Zafar's grievance is, to some extent, aired in the application which he filed. Even so, it is an event of default in its own right. Taken in conjunction with the failure on Mr Zafar's part to appear today, it appears to me that he is not prosecuting his appeal. For these reasons, and in light of the events of default, the application for an extension of time will be dismissed with costs. 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: 16 November 2016