Gauchan v Minister for Immigration and Border Protection

[2014] FCCA 526

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAUCHAN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 526

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.13.03C

Applicant: DHARMENDRA GAUCHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent MIGRATION REVIEW TRIBUNAL

File Number: SYG 1181 of 2013

Judgment of: Judge Emmett

Hearing date: 18 March 2014

Date of Last Submission: 18 March 2014

Delivered at: Sydney

Delivered on: 18 March 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondent: Ms Louise Buchanan
(Australian Government Solicitors)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1181 of 2013

DHARMENDRA GAUCHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

First Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 28 May 2013, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of the failure of the applicant to appear at today’s scheduled hearing.  The applicant sought judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 29 April 2013. On 3 June 2013, the first respondent filed a response asserting that the decision of the RRT was not affected by jurisdictional error. 

2. The applicant attended a directions hearing before me on 14 June 2013. On that occasion, I explained to the applicant the limited role that this court has in considering a decision of the Refugee Review Tribunal; that the grounds of his application made bare, unparticularised assertions; and, the grounds by themselves, did not disclose a complaint capable of review by this court.

3. I also explained to the applicant at the directions hearing the cost consequences that may flow to the applicant in the event that the applicant is unsuccessful in his application. I then confirmed with the applicant that he wished to continue with his application. 

4. The applicant was given leave to file and serve an amended application giving complete particulars of each of ground of review relied upon by 26 July 2013, together with any evidence by way of affidavit in support of his application. The applicant was also directed to file and serve written submissions 14 days before the final hearing, and the matter was set down for final hearing today at 10:15am before me. No document has been filed by or on behalf of the applicant, either in accordance with those directions or otherwise. I note that the applicant signed an acknowledgment of receipt of the Orders to which I have referred above.

5. At the directions hearing, the applicant had the assistance of a Nepalese interpreter and was provided with the contact details of legal service providers and translating and interpreting services for his assistance.  The applicant was informed that in the event that he did not appear at any scheduled court event, his application may be dismissed without further notice. 

6. In support of her application this morning, the solicitor for the first respondent, Ms Buchanan, tendered a letter dated 12 March 2014, from the first respondent’s solicitor to the applicant at the address for service in Australia.  That letter was marked “Exhibit 1R.”

7. Exhibit 1R reminded the applicant of today’s hearing and provided the location of the courtroom and confirmed the time. Exhibit 1R also informed the applicant that if he failed to attend the hearing, that orders may be sought that his application be dismissed with costs.

8. There has been no communication received from the applicant either by this Court or by the first respondent’s solicitors seeking an adjournment of today’s hearing or for any other reason. It is now 10:40am. The matter has been called outside on more than one occasion, the most recent being five minutes ago. 

9. I am satisfied that the applicant is aware of today’s scheduled hearing and for whatever reason has chosen not to attend.

10. The first respondent was also directed to file and serve submissions. On 1 March 2014, the first respondent filed and served its submissions in accordance with that Order. Inter alia, those submissions address the background of the matter, the MRT’s review and decision and the first respondent’s submissions on the grounds of the applicant’s application or judicial review. For the sake of completeness, they are as follows:

    “Background
    2. The applicant is 39 year old a citizen of Nepal who first arrived in Australia on 28 June 1995, the holder of a Sport (Class TE) Subclass 421 visa (sport visa) and has remained in Australia since that time.  The applicant’s immigration history is set out in the decision of the delegate at RD 15, and in the movement records and Departmental records at RD 29-44. A summary is set out in the following paragraphs:

    2.1 The applicant was granted a further sport visa on 26 October 1995 which ceased on 28 June 1996.  In June 1996, he applied for a protection visa which was refused in 1997.  The Refugee Review Tribunal affirmed the decision to refuse his protection visa in 1999, after which the applicant unsuccessfully requested Ministerial intervention.  In 1999, the applicant sought judicial review of the decision of the Refugee Review Tribunal as part of the Muin and Lie class action. 

    2.2 The applicant did not hold a visa between 1999 and 2002 (during which time he spent time in immigration detention before being released on a bridging visa associated with being a member of the Muin and Lie class action).  He also did not hold a visa between July 2003 and October 2009. 

    2.3 In October 2009, the applicant again requested Ministerial intervention and was granted a bridging visa in association with that request. The Minister refused to consider the exercise of that power in 2011 after which the applicant attempted to lodge a further protection visa application which was not accepted as a valid application as there had been not exercise of the power under s 48B of the Migration Act 1958 (the Act) to allow a further application. Between 2011 and 2012 the applicant had judicial review proceedings in the High Court of Australia challenging the exercise of the Minister’s personal powers.

    2.4 Since 2009 (and at times before then) the applicant has been the holder of multiple bridging visas granted on departure grounds. 

    3. The applicant applied for a medical treatment visa on 24 September 2012 (RD 1-10).  In his visa application form, the applicant stated that he was in need of medical treatment for 'depression and associated health problems'.  He otherwise provided no evidence in support of his application, only stating 'I will provide other document … as soon as possible' (RD 1, 4).

    4. The application was refused by a delegate of the Minister on 4 October 2012 on the basis that the applicant did not satisfy cl 675.211 (short stay) or cl 685.211 (long stay) of Schedule 2 to the Migration Regulations 1994 (the Regulations) which require an applicant to intend to visit Australia for medical treatment reasons. The delegate considered the applicant intended to remain in Australia on an ongoing basis and to seek permanent residence (RD 14-17).

    Tribunal process and decision
    5. The applicant applied to the Tribunal for a review of the delegate's decision on 1 November 2012 (RD 18-28).  By letter dated 2 April 2013, the applicant was invited to attend a hearing on 26 April 2013 (RD 47-48).  The hearing invitation letter also enclosed the copies of cll 675.216 and 685.216 of Schedule 2 to the Regulations which require an applicant for a medical visa to hold a substantive visa at the time of making the application or, by reference to criteria in Schedule 3 to the Regulations, to have held a substantive visa no more than 28 days before applying.  The applicant was invited to provide evidence in support of his meeting the visa criteria. 

    6. The applicant appeared before the Tribunal (RD 55-6, 60).  The Tribunal records that at hearing it discussed with the applicant the requirements of cll 675.216 and 685.216, and put to the applicant, pursuant to s 359AA of the Act that the applicant has last held a substantive visa in 1996 (RD 60 [9]).  The Tribunal noted that the applicant did not disagree with the Department’s records that he had not held a substantive visa since 1996.  He claimed, however, that he had personal problems since arriving in Australia, was suffering from depression and had medical problems with his kidneys (RD 60-1 [10]-[11]). 

    7. The Tribunal affirmed the delegate's decision on 26 April 2013.  It found that the applicant's last substantive visa ceased on 28 June 1996 (RD 61 [15]) and that the applicant did not hold a substantive visa at the time of applying for his medical visa (RD 61 [17]).  The Tribunal found that the applicant did not satisfy paragraphs 675.216(a)(ii)(B) or 685.216(1)(b)(ii) of the Schedule 2 criteria for each visa subclass as he did not hold a substantive visa at the time of application and, as the application for a medical visa was made on 24 September 2012, being more than 28 days after the expiry of the applicant's last substantive visa in 1996, could not meet criterion 3001 of Schedule 3 to the Regulations (RD61-2 [20]-[22]).  The applicant therefore did not satisfy cll 687.216 or 685.216 of Schedule 2 to the Regulations.

    8. The Tribunal noted that the applicant would not be required to satisfy cl 685.216 of the criteria for the long stay subclass 685 visa if he satisfied cll 685.212(6) or 685.212(7).  The Tribunal found that as the applicant had not turned 50 at the time of application (see RD 1) and was not a member of family unit of a person who met the requirements in cl 685.212(6) he could not benefit from the exception to the requirement in cl 685.216 (RD 62 [23]).

    9. The Tribunal therefore found the applicant did not meet the criteria for the visa.

    Application to this court and submissions
    10. The application to the Federal Circuit Court, filed on 28 May 2013, states three grounds reproduced as follows (verbatim):

    “1. I am not satisfied with the Migration Review Tribunal member's decision because I believe the Migration Tribunal Member failed to make a decision in my application according to law
    2. I am a victim of the purported decision of the Tribunal.
    3. I am in need of justice.”

    11. The applicant has not filed any amended application or submissions.

    12. The applicant's grounds are mere statements of disagreement with the Tribunal decision.  They disclose no jurisdictional error in the decision of the Tribunal. 

    13. In so far as the applicant alleges that the Tribunal's decision was not made according to law by the first ground, no particulars of the jurisdictional error have been stated.  In the first respondent’s submission there is no such error in the Tribunal decision.  

    14. In any event, it is noted that the applicant does not meet the time of application criteria for the visa sought and he cannot do so in future.”

1. In the circumstances, the orders sought by Ms Buchanan are appropriate, and the application commenced by way of application filed on 28 May 2013, should be dismissed with costs, pursuant to rule 13.03C(1)(c) of the Rules, by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 March 2014