BANOTHU v Minister for Immigration

[2014] FCCA 584

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANOTHU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 584

Catchwords:
MIGRATION – Application to show cause – whether application shows an arguable case for the relief claimed – no arguable case shown – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e) , 44.12(1)(a)
Migration Regulations 1994 (Cth), cl.572.223

Applicant: NAVEEN BANOTHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2676 of 2013

Judgment of: Judge Manousaridis

Hearing dates: 25 February 2014 and 27 February 2014

Delivered at: Sydney

Delivered on: 26 March 2014

REPRESENTATION

The applicant appeared in person on 25 February 2014.
There was no appearance by or on behalf of the applicant on 27 February 2014.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2676 of 2013

NAVEEN BANOTHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was before me on 25 February 2014 for a hearing of an application by the first respondent (Minister) under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) for an order that the application be dismissed on the ground that it raises no arguable case for the relief which it seeks.

The application for review and course of proceedings

1. The application for review seeks relief against a decision of the second respondent (Tribunal) affirming a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of the Migrations Regulations 1994 (Cth) (Regulations). In particular, the delegate was not satisfied the applicant had given evidence of financial capacity.

2. The application filed in this Court contains the following grounds of review:

   1.I applied for student visa on to Sydney Regional Office but I didn’t get approval because I didn’t meet criteria for student visa.

   2.Then I applied to MRT for review of that decision.

3. At the hearing I invited the applicant to make submissions to show he had an arguable claim for relief. In the course of making submissions, the applicant asserted from the bar table that on 9 October 2013, being one day before the day the Tribunal had fixed a hearing before it, the applicant had an injury to his leg, and that prevented him from appearing before the Tribunal. The applicant asserted that his friend had photographic evidence of the applicant’s injury. The applicant also asserted that he failed to contact the Tribunal to postpone the hearing because on the “day I got injured, I actually took painkillers and I slept up to 5 o’clock and that’s why I was not able to send any message”.

4. The Minister was not prepared to accept the truth of these assertions. I accordingly adjourned the hearing to 10.15 am on 27 February 2014, and directed the applicant to prepare and serve on the Minister’s solicitor by 5.00 pm on 26 February 2014 an affidavit in which he was to set out all the evidence on which he intended to rely for the purposes of the hearing. I also directed that with that affidavit, the applicant supply photographic evidence and any other evidence of the injury the applicant says occurred to him on 9 October 2013.

5. When the matter was before me again at 10.15 am on 27 February 2014, the applicant did not appear after I had the matter called. The solicitor for the Minister, Ms Stewart, informed me that she had spoken to the applicant on 25 February and the applicant informed Ms Stewart that he would be providing an affidavit on 26 February 2014. When that was not done, Ms Stewart attempted to telephone the applicant, but without success. In addition, immediately before the matter was called for hearing, one of my associates called the telephone number noted in the application filed in this Court, but on both occasions there was a recorded message to say that the number was unavailable.

6. The solicitor for the first respondent then applied for an order for dismissal for non-appearance. I did not agree to dispose with the Minister’s application on that basis. I instead reserved my decision on the Minister’s application. I did so because I proposed to deal with the Minister’s application pursuant to r.13.03C(1)(e) of the Rules which provides that if a party to a proceeding is absent from a hearing (including a first court date), the Court may “proceed with the hearing generally or in relation to any claim for relief in the proceeding”.

Does the application raise an arguable case for relief?

1. There is no doubt that the application does not state any arguable claim for the relief it seeks. It does not even state a ground for review; it only refers to the applicant’s applying to the delegate and then to the Tribunal for a visa and his being denied the visa.

2. The application will be dismissed and the applicant will be ordered to pay the Minister’s costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  26 March 2014