Farook v Minister for Immigration - [2008] FMCA 1180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAROOK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1180

MIGRATION – Student visa – failure to meet condition requiring a specified level of attendance – application to set aside earlier orders made in absence of applicant – reasonable excuse for non attendance considered – whether in any event the applicant had an arguable case – application to set aside dismissed.

Applicant:

MOHAMED FAROOK

Respondents:

MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOTHER

File Number:

MLG 209 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

28 July 2008

Delivered at:

Melbourne

Delivered on:

28 July 2008

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Mr Forsaith

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application filed on 27 June 2008 is dismissed.
That the applicant pay the first respondent's costs fixed in the sum of $1000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 209 of 2008

MOHAMED FAROOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOTHER

Respondents

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me on an application filed by the applicant, Mr Farook, on 27 June 2008 to set aside orders that were made in his absence on 29 May 2008.
Under that order the applicant's substantive application, which I will discuss shortly, was dismissed for three reasons under the Federal Magistrates Court Rules: first, because there was a failure on the part of Mr Farook to comply with directions made on 17 April 2008 (Rule 13.03(2)(b)). That direction was that Mr Farook file on or before 1 May an amended application. That was not complied with and still remains outstanding. The second reason was there was no appearance on behalf of the applicant at the hearing on 29 May 2008 (Rule 13.03A(c)). The third reason was that, in any event, on the material before the court on 29 May 2008 there was no arguable case apparent (Rule 44.12(1)(b)).
As I said, we are here today on an application to set aside those orders and I heard the applicant as to why he did not attend on that day and I also heard him as to the other two reasons why it was dismissed.
Reasons for absence
He did not attend on that day, on his evidence, because of ill health. He had been ill for a couple of days before the hearing date. He was conscious of the hearing date and with the assistance of friends with whom he lives, he drafted a letter to be sent to the registrar explaining his absence. His friend faxed it through to the Court on that day.
The letter spoke of him being unwell and today he has described his illness as being flu, which he medicated and treated, with the assistance of friends, with flu tablets and bed rest. He states he was out of action, so to speak, for four to five days. He says he could not go to the doctor because of an expired Medicare card and he did not have the money to pay for a medical examination. The question for the court is whether that explanation offered by the applicant is a reasonable explanation for his absence on the day.
In my view, having regard to the very serious nature of the hearing on that day, and the significant affect of the process on his right to study in Australia, short of being hospitalised, I would have thought one would have made, notwithstanding suffering from flu, an effort to get in here. If it is truly flu that was the problem, as opposed to the common popular misnomer of common cold, his period of incapacity would have been considerably more than four to five days.
I have my doubts as to whether he had flu. He may very well have been ill, but I am not satisfied that the illness was so incapacitating that it precluded an attendance here at court. But even if I am wrong in that regard, one other consideration I have to give attention to before setting aside the orders made on 29 May 2008 is the issue of whether there is an arguable case. This is even more so, having regard to the fact that, by way of a response filed by the first respondent, the first respondent seeks to have the application summarily dismissed because it does not disclose or raise an arguable case.
I invited the applicant today to address me as to what it was that he said was in error in respect of the Tribunal's decision. In response to that he raised, as I understand for the first time, a concern he had about the lack of an interpreter at the hearing. As a general rule I am very sympathetic to people whose native language is not English and who are then forced to partake in complex legal proceedings in a very unfamiliar and often intimidating environment. But, be that as it may, I note that at the hearing in the Tribunal the applicant was represented by a migration agent and on the advice, which was accepted, by that migration agent, it was not considered by the applicant necessary to have an interpreter.
There is nothing on the face of the Tribunal's decision to indicate that there were any difficulties with the applicant understanding the process before the Tribunal.
I am not satisfied that the assertion made today about a lack of an interpreter is such as to have denied a fair hearing to the applicant at the Tribunal.
When invited to give further explanation as to why the Tribunal was in error, the applicant was unable to advance his case any further than what was put to the Tribunal in the first instance.
I have read the Tribunal's decision which was handed down on 16 January 2008 with a critical eye as to whether, on the face of the reasons given, there was any ground for finding a jurisdictional error on the part of the Tribunal, and I could not find one.
In essence, the applicant came into difficult circumstances with his visa because of a failure to comply with a condition imposed on his visa. The breach that the Tribunal found took place was a breach of condition 8202. That condition, for a student visa, required the applicant to attend 80 per cent of contact hours. Certification from the educational institute, namely the North Melbourne Institute of TAFE, indicated that only 19 per cent of contact hours were fulfilled by the applicant.
The Tribunal rightfully addressed the issue of the applicant's claim of concern about his father's health and how it had affected his capacity to study. The Tribunal's conclusion in relation to that, in my view, is correct, both in respect of its probative logic and application to the law.
The Tribunal's finding and ultimate conclusion, in my view, exhibit probative logic and there is no evidence of error on the part of the Tribunal. Accordingly, I find that there is no arguable case for the applicant.
Therefore, it can be said that no reasonable excuse has been proffered for failure to attend on 29 May and/or an examination of the case supports the contention of the first respondent that no arguable case has been disclosed.
Therefore, I intend to dismiss the application that was filed on

27 June 2008
.
I am of the view in the circumstances it is appropriate to make an order for costs, and under the rules the appropriate amount should be $1000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 28 July 2008