AAYUSH KC v Minister for Immigration

[2016] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAYUSH KC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3147

Catchwords:
MIGRATION – Applicant seeking to reinstate substantive application – applicant failing to attend Tribunal hearing – whether adequate explanation for non-attendance – substantive application devoid of merit – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001 r.16.05
Migration Regulations 1994, cl.573.222

Applicant: AAYUSH KC

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1179 of 2015

Judgment of: Judge Burchardt

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Dandenong

Delivered on: 15 December 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Ward

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application to reinstate the substantive application filed 26 May 2015 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1179 of 2015

AAYUSH KC

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant has filed an application in a case on 27 September 2016. He seeks the reinstatement of his application which was dismissed by Judge Jarrett on 19 September 2016 because of his non-attendance at court. Although, understandably, not expressed in terms, I will treat the application as validly invoking the court’s power to reinstate pursuant to r.16.05 of the court’s rules. In his affidavit in support of the application in the case, the applicant deposes that he had made an appeal application filed on 26 May 2015 seeking judicial review of a decision of the Administrative Appeals Tribunal, then known as the Migration Review Tribunal. The affidavit asserts that the basis of the appeal was jurisdictional error.

2. The applicant deposes that he was not able to attend the hearing before Judge Jarrett because of an unforeseen illness.  He deposes to fainting on the road on the way to court.  A friend contacted the court and was advised that the applicant should email the Associate to the Judge.  He emailed the Associate and exhibit A1 is his email, timed at 10.45 am.  The email suggests that he was waiting to see the doctor and felt weak and dizzy and would not be able to make the 11.30 hearing.  He sought an adjournment.  The Associate responded by telling the applicant that he must attend the court and provide a medical certificate by 2.30 pm.  That email is exhibit A2.

3. The friend earlier referred to assisted the applicant to deliver the medical certificate to the Registry at 1.02 pm, which I understand is uncontroversial. Unfortunately, the friend did not forward it to the court.  The medical certificate which is undated asserts the doctor examined the applicant on 19 September 2016 and:

   It is my opinion, he will not have the capacity to perform the duties he is normally required to perform in the course of their usual occupation, duty or study.

4. His Honour Judge Jarrett was not satisfied by this explanation and dismissed the application.  The applicant then received advice that his application was dismissed and that if he wished, he could apply to reinstate it.  The applicant then produced a medical certificate dated 20 September 2016 from the same doctor which relevantly certifies that the applicant:

   has had acute gastroenteritis with diarrhoea, nausea, vomiting and dizziness for which he reported to me on 19 September 2016. He was given a medical certificate, unfit for duties for two days.  Due to this, he was not able to attend the courts. 

5. I note that the description given by the doctor is not consistent with that of the applicant.  The applicant said that he fainted and, indeed, his first note to the court, exhibit A1, merely says that he felt weak and dizzy.  It made no reference whatsoever to acute gastroenteritis with diarrhoea, although it did refer to dizziness.  In these circumstances, it has to be said that the applicant’s explanation is scarcely wholly compelling, but I am prepared to give him the benefit of the doubt. 

6. The next matter to be considered is the utility of granting the application, bearing in mind the force or otherwise of the applicant’s original application.  The original application filed on 26 May 2015 has as grounds of application simply:

   1.Procedural Fairness Not provided

   2.Incorrect application of the law,

   3.Lack of natural justice.

7. These grounds are, of course, wholly unparticularised.  It appears that the applicant filed an affidavit contemporaneously with the application, affirmed 25 May 2015, which is at Court Book (“CB”) 91 - 92.  That relevantly states that the applicant’s earliest student visa was refused on 17 November 2014 by Immigration, saying that he was not a genuine student.  At paragraph 3, the matter is described as:

   I believe the decision by the MRT was not fair and it is legally wrong as I was not afforded a proper chance to present my arguments.

8. The Tribunal’s decision is at CB80 - 83. I note that this was an application for review of a decision made by a delegate of the first respondent to refuse the applicant a Student (Temporary) (Class TU) visa. The basis of such refusal was the fact that the applicant had failed to lodge evidence of enrolment and therefore did not satisfy the requirements of cl.573.222 of Schedule 2 to the Migration Regulations 1994.  The Tribunal noted that there was no basis upon which the applicant met the criteria for any other subclasses of the relevant visa class. 

9. The Tribunal further noted that the applicant was required, pursuant to cl.573.222 to give to the Minister a certificate of enrolment relating to the applicant undertaking a course of study, the provider of which is not a suspended education provider. The Tribunal noted that the applicant originally arrived in Australia in July 2006 as the holder of a student subclass 572 visa valid until 27 September 2007. He subsequently held a number of other student and bridging visas, the last student visa being granted on 16 June 2010, which was current until early September 2014.

10. On 30 September 2014, the applicant lodged a further student visa application nominating his intended studies as a General English course and a Bachelor of Professional Accounting.  The Tribunal noted that in processing that application, the Department became aware that the enrolments in both the applicant’s intended courses had been cancelled.  As he had not provided evidence of current enrolment on 17 November 2014, the delegate refused the application.

11. On 16 April 2015, the Tribunal invited the applicant by email to attend a hearing of the Tribunal on 6 May 2015 (CB73-74).  The letter asked the applicant to provide the Tribunal with a copy of his current certificate of enrolment, which it stated was required for the grant of the visa.  No submission was received in response.  The applicant did not attend the scheduled hearing either, so the Tribunal made its decision based on the information on the file.  The Tribunal noted at paragraph 17, CB83:

    The Tribunal finds that the application was not made on a form 157E and there is no evidence to suggest that Mr KC’s education provider was prevented from sending a certificate of enrolment due to a failure of electronic transmission.  Therefore at the time of decision, Mr KC was required to give the Minister (or delegate) a certificate of enrolment relating to his undertaking an acceptable course.  There is no evidence before the tribunal that Mr KC holds current enrolment.  Accordingly, the tribunal finds that Mr KC does not satisfy clause 573.222. 

12. On this footing, the Tribunal found that it had no alternative but to affirm the decision under review. 

13. When the matter came before the court, the applicant explained that he had been ill and otherwise how it was that he came to be unable to attend on 19 September 2016.  He went on to say that his grandmother died and his sister divorced and he was not able to continue his studies, which is why his visa was cancelled. 

14. The representative of the first respondent having explained that the application was short served, (although nothing arose there from), submitted that there was no sufficient explanation for non-attendance. Counsel was, so far as the application’s merits were concerned, content to rely upon the written submissions originally filed for the proceeding before Judge Jarrett.  It is sufficient to say for these purposes that I uphold the written submissions of the first respondent inasmuch as they assert that the Tribunal acted properly in the circumstances in proceeding to hear and determine the application in the absence of the applicant without trying to contact him. 

15. The applicant’s case was so broadly expressed, in terms that gave rise to no discernible identifiable issue to be considered, that it was in my view not a form of lack of fairness or a jurisdictional error for the Tribunal to proceed.  Further, in circumstances where the applicant, on any view of the matter, had not disclosed that he had the necessary certificate of enrolment at the relevant time, the Tribunal’s decision was, in my view, inevitable.  No other result could possibly have arisen.  Indeed, the applicant’s brief oral submissions at court only go to support the absence of the certificate of enrolment and his participation as a student, that he had to prove in any event. 

16. The applicant’s case, in my view, does not disclose sufficient merit or, indeed, any merit, and in those circumstances, even assuming that he has satisfactorily explained his non-attendance before the court, it is not in the interests of justice to reinstate the application and the application in the case will be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 15 December 2016