Acharya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 460

Federal Court of Australia Acharya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 460 Appeal from: Acharya v Minister for Immigration & Anor [2019] FCCA 3203

File number(s): NSD 1958 of 2019

Judgment of: RARES J

Date of judgment: 20 April 2022

Legislation: Migration Act 1958 (Cth) s 116 Migration Regulations 1994 (Cth) Sch 8

Cases cited: Acharya v Minister for Immigration [2019] FCCA 3203 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 46

Date of hearing: 20 April 2022

Counsel for the Appellant: Appellant did not appear

Solicitor for the Respondents: George Pasas of Clayton Utz

ORDERS NSD 1958 of 2019

BETWEEN: ABIRAL ACHARYA Appellant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: RARES J DATE OF ORDER: 20 APRIL 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J: 1 This is an appeal from a decision of the Federal Circuit Court to refuse constitutional writ relief to the appellant Abiral Acharya in respect of the decision of the Administrative Appeals Tribunal given on 27 March 2019 to affirm the decision of the Minister's delegate to cancel the appellant's class TU visa: Acharya v Minister for Immigration [2019] FCCA 3203. 2 On 30 March 2022, the appeals unit notified the parties by email that this appeal was set down for hearing this morning at 9:30 am before me. Subsequently, on 11 April 2022, the appeals unit informed the parties that the hearing would start at 11:00 am and confirmed that all other directions and the timetable remained the same. 3 On 12 April 2022, the appellant sent an email saying: I would like to put in another request to postpone the hearing for a few months as I am unable to afford any Lawyers due to financial constraints after the Covid Pandemic. My family has struggled quite severely back in my home country Nepal too because of Covid so they are not able to assist me either. Hopefully my request is considered. 4 Later that day, the appeals unit responded saying that I had considered the appellant's request to postpone the hearing but was of the view that he had had plenty of time to obtain legal representation and that the hearing should proceed today as scheduled. 5 On 19 April 2022, the Minister's solicitor emailed the appellant noting that the hearing was to take place this morning at 11:00 am, reattaching a copy of the appeal book and the Minister's submissions, and advising him that hard copies would be in Court for his use in the morning. The email said that if he did not attend, the Minister would seek orders dismissing the appeal with costs. 6 There has been no further communication from the appellant, and he did not appear when the matter was called this morning.