Kalapala v Minister for Home Affairs - [2019] FCCA 859

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALAPALA v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 859

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal of show cause application for non appearance – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 359AA

Migration Regulations 1994 (Cth)

Cases cited:

BAV16 v Minister for Home Affairs [2019] FCA 292

DZAAD v Department of Immigration and Citizenship [2013] FCA 204

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Kaur v Minister for Immigration [2016] FCA 132

MZYEZ v Minister for Immigration [2010] FCA 530

NAKX v Minister for Immigration [2003] FCA 1559

Singh v Minister for Immigration [2016] FCA 108

Singh v Minister for Immigration [2017] FCA 994

SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant:

VICKY KALAPALA

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 880 of 2018

Judgment of:

Judge Driver

Hearing date:

3 April 2019

Delivered at:

Sydney

Delivered on:

3 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

The Application in a Case filed on 12 March 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,292.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 880 of 2018

VICKY KALAPALA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an Application in a Case filed on 12 March 2019. The applicant, Mr Kalapala, seeks reinstatement of a judicial review application filed on 29 March 2018. That application had been dismissed by me on 21 February 2019, on account of Mr Kalapala’s failure to attend a hearing on that day, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). I also made a costs order.
Mr Kalapala’s reinstatement application is supported by an affidavit by him, filed with it. In that affidavit, Mr Kalapala seeks to explain his failure to attend the Court hearing. He refers to a slip and fall, and consequential severe pain. He annexes a medical certificate, made on 18 February 2019, from the Homebush Medical Practice, which certifies that a doctor examined Mr Kalapala on that day and found him to be suffering from left knee pain following a fall. The doctor certifies that Mr Kalapala was unfit for work from 18 February to 22 February inclusive.
The reinstatement application is opposed by the Minister, who relies on written submissions, filed on 27 March 2019. Those submissions deal with the background to this matter.
Mr Kalapala is a citizen of India. He was first granted a student visa in August 2013, and arrived in Australia on 5 September 2015 with the stated intention of studying a Master of Information Systems at Federation University.[1]
[1] bundle of relevant documents (RD) 30
Mr Kalapala applied for the visa on 26 September 2016,[2] and a delegate of the Minister (delegate) refused to grant the visa on 18 January 2017 on the basis that the delegate was not satisfied that Mr Kalapala genuinely intended to stay in Australia temporarily.[3] Mr Kalapala applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision on 3 February 2017.[4] Mr Kalapala appeared before the Tribunal on 7 March 2018 to give evidence and present arguments, and the Tribunal affirmed the decision under review on the same day.[5]
[2] RD 1
[3] RD 42‑50
[4] RD 51‑72
[5] RD 129-134

Tribunal decision

The Tribunal applied clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) in assessing whether Mr Kalapala was a genuine applicant for entry and stay. The Tribunal also considered Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction).[6]
[6] RD 130-131 at [9]-[12]
The Tribunal noted the following by way of background:
a)Mr Kalapala was excluded from the program at Federation University due to non-payment of fees;[7] and
b)Mr Kalapala completed two English courses since arriving in Australia. After making the visa application he commenced, and was still studying, a Diploma of Business at Sydney Metro. He had also enrolled in an Advanced Diploma of Business at Sydney Metro College, which was due to begin in September 2018.[8]
[7] RD 131-132 at [13]
[8] RD 132 at [14]
The Tribunal considered Mr Kalapala’s PRISMS[9] record and made the following two inferences:[10]
a)first, the Tribunal found that the PRISMS record supported Mr Kalapala’s claims of his past academic history;
b)secondly, the PRISMS record did not show Mr Kalapala’s current enrolment, but the Tribunal nevertheless accepted his claims. The Tribunal noted that he only enrolled two days before the PRISMS record date, and concluded that the PRISMS record was likely yet to be updated.
[9] Provider Registration and International Student Management System
[10] RD 132 at [17]
The Tribunal considered Mr Kalapala’s application as follows:
a)he had completed three of ten subjects in his Diploma in Business. The Tribunal considered that Mr Kalapala had “made unremarkable progress and has failed a subject”, and this lack of academic progress was the Tribunal’s most significant concern;[11]
b)the Tribunal was also concerned that classes started two weeks before Mr Kalapala’s hearing, yet he had not attended.[12] The Tribunal was not satisfied that Mr Kalapala presented strong evidence to demonstrate that he had paid his fees and was going to commence attending classes;[13]
c)he explained his poor academic progress in Australia was due to his father’s heart attack in 2014, his sister’s ill-health and subsequent death in March 2015, and a failed relationship in 2017. The Tribunal did not accept this explanation as a reason why Mr Kalapala could not progress academically in Australia;[14]
d)the Tribunal did not consider that Mr Kalapala demonstrated that his ties to India were greater than his ties to Australia, and found that he was primarily using the student visa to maintain residence in Australia;[15] and
e)the Tribunal found that there was “little reliable evidence” that Mr Kalapala could support himself financially, and no evidence that the courses will improve his employment prospects in India.[16]
[11] RD 132, 134 at [15], [25]
[12] RD 132 at [18]
[13] RD 132-133 at [19]
[14] RD 133 at [20]
[15] RD 133 at [22]
[16] RD 133 at [23]
The Tribunal concluded that Mr Kalapala was not a genuine temporary entrant and affirmed the decision under review.[17]
[17] RD 134 at [26]-[29]

Proceedings in this Court

Under rule 16.05(2)(a) of the Federal Circuit Court Rules, the Court has a discretionary power to set aside orders made in the absence of a party. This discretion requires the consideration of three factors, and whether, on the balance, they tend for or against the reinstatement of the application.[18] Those factors are:
a)whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was dismissed
b)the existence and nature of any prejudice which might flow to the respondent from the reinstatement, and the extent, if any to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to grant; and
c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
[18] MZYEZ v Minister for Immigration [2010] FCA 530 at [7]; BAV16 v Minister for Home Affairs [2019] FCA 292 at [8]
The Minister concedes that there would be limited prejudice to the Minister if the matter were reinstated. However the mere absence of prejudice is not enough to justify the grant of an extension.[19]
[19] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349; DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]
The Minister contends that the remaining factors weigh heavily against the matter being reinstated.
The Minister’s submissions also deal with the essential facts concerning Mr Kalapala’s failure to appear.
The matter was listed for a show cause hearing on 21 February 2019 at 3:30pm. On 21 February 2019, Mr Kalapala did not attend the hearing.
Mr Kalapala filed an affidavit on 19 February 2019, annexing a medical certificate, in which he sought an adjournment of the show cause hearing on the basis that he hurt his knee and was unfit for work from 18 February 2019 to 22 February 2019. The Minister opposed the adjournment request. The Court informed Mr Kalapala that, if he was unable to appear in person at the show cause hearing, he should make himself available to attend by telephone.
On 21 February 2019, the matter was called and there was no appearance by Mr Kalapala. My Associate attempted to contact Mr Kalapala twice by telephone, but he did not answer. On the application of the Minister, the application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.
On 12 March 2019, Mr Kalapala filed an Application in a Case seeking that that matter be reinstated with an accompanying affidavit.
Mr Kalapala’s affidavit filed 12 March 2019 asserts that Mr Kalapala was “indisposed due to acute knee pain on account of slip and fall” and that he was “bedridden and was writing [sic] in pain on the hearing day and…given sedatives as pain killers and was very drowsy and sleepy during that period”. The medical certificate annexed to that affidavit merely states that Mr Kalapala was suffering from left knee pain post fall, and was unfit for work from 18 February 2019 to 22 February 2019 inclusive.
On its face, this excuse and medical certificate are insufficient to explain Mr Kalapala’s non-appearance by telephone for three reasons.
First, the medical certificate merely states that Mr Kalapala was “unfit for work”. It makes no reference to his fitness for Court, and does not substantiate the claims he makes in the affidavit filed 12 March 2019. Such a certificate is not adequate to support a finding that a person is not fit to travel to Court and participate in a hearing.[20]
[20] see Singh v Minister for Immigration [2016] FCA 108 at [2]; NAKX v Minister for Immigration [2003] FCA 1559
Secondly, Mr Kalapala does not explain how he was able to attend a doctors’ appointment on 18 February 2019 and be examined, but was “bedridden” and unable to attend Court three days later.
Thirdly, and relatedly, Mr Kalapala was requested to appear by telephone by the Court. His affidavit evidence does not explain why he was unable to do so.
The Court was aware of Mr Kalapala’s medical condition prior to the show cause hearing, because Mr Kalapala had emailed my chambers and sought an adjournment, and had forwarded the medical certificate. In response, my Deputy Associate advised Mr Kalapala to be available to attend by telephone, so that the question of an adjournment could be discussed with him at the show cause hearing. Despite several attempts being made to contact Mr Kalapala by telephone on the day, he was not contactable.
In his oral submissions, Mr Kalapala now explains that this was because he had taken a powerful sedative, to deal with the pain he was suffering, and had fallen asleep. In other words, he did not hear the phone. That explanation goes some way to explain Mr Kalapala’s failure to attend by telephone. It was nevertheless unwise for him to have taken a powerful sedative at the time when he was requested to be available by telephone.
The greater difficulty for Mr Kalapala is, however, the lack of merit in his judicial review application. I raised that with Mr Kalapala at this afternoon’s hearing. I asked him what he felt was wrong with the Tribunal’s decision or its procedure. He is concerned that he was not provided with the PRISMS records relied upon by the Tribunal.
The decision whether to reinstate the application requires the Court to consider whether the substantive application has any prospects of success. I agree with the Minister’s submissions that the sole ground of the substantive application must fail.
Section 359AA of the Migration Act 1958 (Cth) (Migration Act) does not create a free-standing obligation, and only provides a method by which the Tribunal can comply with obligations arising under s.359A of the Migration Act.[21] As Pagone J described in Singh v Minister for Immigration:[22]
The mandatory preconditions for the exercise of the Tribunal’s powers were found in s 359A not s 359AA: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, [73]–[78]. The latter provision was introduced following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 and provided a more flexible approach in discharging the obligation imposed by s 359A.
[21] see s.359A(3) of the Migration Act
[22] [2017] FCA 994 at [4]
The relevant question is whether the PRISMS record was information to which s.359A of the Migration Act applied. In my view, it was not.
PRISMS records can constitute information for the purpose of s.359A of the Migration Act.[23] However, s.359A of the Migration Act does not apply to information that Mr Kalapala gave for the purpose of the application for review.[24]
[23] Kaur v Minister for Immigration [2016] FCA 132 at [44]
[24] section 359A(4)(b) of the Migration Act
There are two reasons why the PRISMS record was not information to which s.359A of the Migration Act applied. First, the Tribunal found that the information contained in the PRISMS record supported the information that Mr Kalapala gave the Tribunal regarding past academic history. On this basis, the information in the PRISMS record that was accepted by the Tribunal was information that Mr Kalapala himself gave for the purpose of the application for review and so was excluded under s.359A(4)(b) of the Migration Act.
Secondly, the PRISMS record did not contain information that amounted to a rejection, denial or undermining of Mr Kalapala’s claims. Rather it corroborated his evidence of courses he had been enrolled in. As such, it was not information that “would be” the reason, or part of the reason, for affirming the decision under review.[25]
[25] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]
The Tribunal noted that the PRISMS record did not contain evidence of Mr Kalapala’s most recent enrolment. This is not “information” for the purposes of s.359A either, but is merely an “absence of evidence”.[26] In any case, the Tribunal accepted Mr Kalapala’s claims about his current enrolment. In those circumstances, the PRISMS record could not undermine Mr Kalapala’s claims.[27]
[26] SZBYR at [18]
[27] SZBYR at [17]
As such, Mr Kalapala’s claims about s.359AA cannot succeed.
In my view, the show cause application does not raise a serious question to be tried. It follows that I am not persuaded that the interests of the administration of justice call for the reinstatement of the show cause application.
I will order that the Application in a Case filed on 12 March 2019 is dismissed.
In consequence of the dismissal of the application in a case, the Minister seeks costs of that application, fixed in the sum of $1,292. Mr Kalapala did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,292.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 4 April 2019