BODIGE v Minister for Immigration
[2018] FCCA 1841
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BODIGE v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1841 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – application for review dismissed for non-appearance – application to reinstate proceeding – reason for non-appearance inadequate – whether Tribunal afforded the applicant procedural fairness. |
| Legislation: Migration Regulations 1994, cl.573.222 of Schedule 2 |
| Cases cited: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 |
| Applicant: | SHIVASHANKAR BODIGE |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2001 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 18 June 2018 |
| Date of last submission: | 18 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Jarrod Blusztein |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application in a case filed on 12 June 2018 seeking re-instatement of the proceeding filed on 18 September 2017 and dismissed on 30 May 2018 for non-appearance be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $2,280.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2001 of 2017
| SHIVASHANKAR BODIGE |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)[1]
Introduction
[1] Reasons for judgment were given orally on 18 June 2018. The applicant filed an application for leave to appeal on 27 June 2018. The registry advised chambers on 4 July 2018 that the applicant had filed an application for leave to appeal. Chambers ordered a transcript of the reasons for judgment on 3 July 2018. Auscript provided the transcript of the reasons for judgment on 3 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 6 July 2018.
This is an application for reinstatement of an application for review of a decision of the Administrative Appeals Tribunal. The substantive application was dismissed by a registrar on 30 May 2018 when the applicant failed to appear at a directions hearing.
In considering any application for reinstatement, the court is required to consider the reasons for the person’s non-attendance at the hearing when the matter was dismissed for non-appearance, whether there is any prejudice to the respondent and if so, whether it can be ameliorated in some way, and whether the substantive application has reasonable prospects of success.
In the present case, the applicant supported his application for reinstatement with an affidavit which was sworn on 12 June 2018. In that affidavit, the applicant asked for the previous order to be squashed and said that he should be given an opportunity for procedural fairness as he could not attend the previous proceeding date due to a medical reason. The affidavit then said, I am seeking fair chance to put forward my fairness. The affidavit also said the applicant was attaching a medical certificate and said that he was under observation by a doctor from 28 May 2018 to 31 May 2018.
The affidavit has attached to it a medical certificate dated 28 May 2018 signed by a doctor. It said the applicant was receiving medical treatment for the period 28 May 2018 to 31 May 2018 inclusive and would be unfit to continue his usual occupation. The affidavit also had attached to it a prescription for the applicant for some Maxolon tablets. The applicant told the court that he was unable to attend the directions hearing on 30 May 2018 because he was vomiting and had diarrhoea.
The Federal Court has made it clear that medical certificates of the type produced by the applicant in this case are insufficient to explain a person’s absence from a hearing.[2] The Federal Court has made it clear that the medical evidence needs to explain why a person is not able to attend the hearing and how their illness would prevent them participating in a hearing.[3]
[2] NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.
[3] Ibid at [6].
The medical certificate in this case only said that the applicant was unable to continue with his usual occupation, which is obviously not the same as attending what could be expected to be a relatively short directions hearing. Consequently, I am not satisfied that the applicant has given an adequate reason for not attending the directions hearing on 30 May 2018.
The Minister did not point to any prejudice that could not be cured by an order for costs.
In relation to the prospects of success of the substantive application, the applicant applied for a student visa on 17 March 2014. He had previously held another student visa which expired on 15 March 2014. A delegate of the Minister refused the application on 4 June 2014 on the basis that the applicant did not meet the genuine temporary entrant requirements.
The applicant sought review by the Tribunal, which remitted the decision to a delegate for reconsideration. On 20 April 2015, the delegate requested further information including evidence of the applicant’s employment, qualifications, English language capacity, study and financial capacity. On 18 June 2015, a delegate again refused the visa on the basis that the applicant did not meet the genuine temporary entrant requirements. The applicant again sought review by the Tribunal and the Tribunal again remitted the matter to the delegate for reconsideration.
On 1 August 2016, the delegate asked the applicant to provide evidence that he was enrolled in a registered course of study. The applicant provided to the delegate, a certificate of enrolment which appeared to indicate that the applicant was enrolled in a Masters of Business Administration at Holmes Institute. However, that enrolment had been cancelled by the Institute due to the non-payment of fees. On 19 October 2016, the delegate again requested that the applicant provide evidence of current enrolment and the applicant again provided the same certificate of enrolment. On 30 November 2016, the delegate refused to grant the visa.
The applicant then applied for the third time to the Tribunal. By email dated 6 January 2017, the Tribunal requested the applicant’s current certificate of enrolment. The applicant’s agent again provided the certificate of enrolment for the Masters of Business Administration at Holmes Institute that had been previously cancelled for non-payment of fees.
The Tribunal invited the applicant to a hearing on 22 August 2017. The hearing invitation again requested that the applicant provide a copy of his current certificate of enrolment.
The applicant attended the Tribunal hearing on 22 August 2017. The Tribunal gave an oral decision on the day, which was later reduced to writing. In the Tribunal’s reasons for decision, the Tribunal noted in paragraph 6 that:
On 29 June 2017 we sent you an invitation to today’s hearing and with that invitation we asked you to provide a copy of your current certificate of enrolment which we explained was required for the grant of a student visa and we asked that the evidence was provided at least seven days before today’s hearing. You have provided no evidence of enrolment and you tell the Tribunal today that you are not currently enrolled.
The Tribunal went on to say that enrolment is a prerequisite for the grant of the visa and as the applicant did not have an enrolment, he did not satisfy cl.573.222 of Schedule 2 to the Migration Regulations 1994.
The Tribunal noted that the applicant said at the hearing that if he were given some more time, his father might be able to get some money to enable him to buy some health cover. The Tribunal then noted that the applicant explained that his father’s business had failed due to a change in currency in India. When the Tribunal expressed some doubt about that, the applicant said that the business failed because his uncle had stolen money from his father. The Tribunal noted that there was no evidence to support the applicant’s explanations.
The Tribunal considered that the applicant had been given ample time to provide the required evidence and proceeded to affirm the delegate’s decision.
During the hearing before this court, the applicant said that he had been unable to submit a certificate of enrolment because his grandfather had passed away. However, it then seemed that that event related to an earlier enrolment that the applicant had in a Masters in Pharmacy. It seemed that after the grandfather passed away, the applicant commenced a certificate in business. He told the court that initially his application had been refused by the delegate because he was not a genuine student. However, he conceded to the court today that, at the time of the Tribunal’s decision, he did not have a certificate of enrolment. He maintained that he was a genuine student.
The applicant said that he could not point to anything that was wrong in the Tribunal’s decision. The applicant said that he did not want to elaborate on the grounds set out in his application.
The first ground in the application filed on 18 September 2017 (“the application”) is that the Tribunal failed to afford the applicant procedural fairness and natural justice. However, the Tribunal afforded the applicant procedural fairness by inviting the applicant to a hearing and by explaining that the certificate of enrolment was a prerequisite for the grant of the visa. The delegate’s decision had also indicated that the visa was refused because the applicant was not enrolled in an approved course. The Tribunal mentioned the requirement for a certificate of enrolment in an email dated 6 January 2017 and in the hearing invitation dated 29 June 2017.
In these circumstances, it is difficult to see how it could be maintained that the applicant was not given procedural fairness in relation to the determinative issue before the Tribunal, which was that the applicant did not have a certificate of enrolment and, therefore, could not meet a mandatory criterion for the grant of the visa.
Ground 2 in the application is:
The decision maker has failed to give me an opportunity and to address the issues and grounds upon which the visa was refused. I sought additional time to submit my claims which was disallowed
It is true that the applicant sought additional time and the Tribunal decided not to give it. I do not consider that it is arguable that there was any jurisdictional error in the Tribunal’s consideration of that matter. The applicant was asked repeatedly for his certificate of enrolment. The Tribunal’s determination that the applicant had had ample time to organise his material was reasonable in all the circumstances.
Ground 3 in the application is:
The tribunal made a decision disregarding my evidence submitted and assessing regulation 573.222 of schedule 2 of Migration ACT as applicable in my case.
It was open to the Tribunal to determine that the applicant did not meet a single mandatory criterion for the grant of the visa and then not proceed to consider the other matters. As the applicant did not meet a mandatory criterion, it was irrelevant whether or not he met other criteria. It is not reasonably arguable that the Tribunal erred in the manner alleged.
Ground 4 in the application is that:
The decision maker has failed to identify and consider the elements of clause 573.222 of Migration Schedule 2 of Migration ACT specifically the study pattern, my circumstances, my relevant facts and details submitted
Again, once the Tribunal had determined that the applicant did not meet a mandatory criterion, it was unnecessary for the Tribunal to consider other matters, such as study patterns, the applicant’s circumstances or his relevant facts and details.
It seems to me that it is not reasonably arguable in this case that the Tribunal made anything that could amount to a jurisdictional error. In addition, the applicant’s reasons for failing to attend the directions hearing were not adequate.
I note that the applicant did make the application to reinstate promptly after the matter was dismissed for non-appearance and that is a matter in his favour. However, taking into account the other matters, it seems to me that it would not be in the interests of the administration of justice for the present application to be reinstated.
Therefore, the application in a case filed on 12 June 2018 seeking reinstatement of the proceeding filed on 18 September 2017 and dismissed on 30 May 2018 for non-appearance will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 6 July 2018
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