Kaur v Minister for Immigration

[2015] FCCA 1439

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1439

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – applicant has failed to appear – no explanation provided as to non-appearance – case lacks ostensible merits – application dismissed in default of appearance.

Legislation:  

Migration Act 1958 (Cth), ss.5; 474, 476(1), 476(2)

Migration Regulations 1994, r.1.15C
Federal Circuit Court Rules 2001: r.13.03C

Applicant: GURPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 218 of 2014

Judgment of: Judge Brown

Hearing date: 14 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Adelaide

Delivered on: 14 April 2015

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Mr Tredrea

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Applicant pay the costs of the First Respondent fixed at five thousand eight hundred dollars ($5,800.00).

2. The application filed on 18 June 2014 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 218 of 2014

GURPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent:

REASONS FOR JUDGMENT

1. This afternoon I have to deal with an application, which is brought pursuant to section 476 of the Migration Act 1958.  The applicant in the proceedings is Gurpreet Kaur. 

2. The first respondent is the Minister for Immigration and Border Protection.  The Migration Review Tribunal is named as the second respondent.  I understand that the Tribunal has filed a submitting appearance but has not otherwise taken part in the case. 

3. The proceedings arise as a consequence of a decision of the Migration Review Tribunal, which was made on 4 June 2014.  The application was filed within time on 18 June 2014.  In the application, the applicant seeks that the decision of the Tribunal be quashed. 

4. The ground of the application has been handwritten by the applicant herself and reads as follows:

   I believe that officers have made an error by not considering exceptional reasons provided by me in my favour.  It is my belief that exceptional reasons existed.  There are other many such cases that were similar to mine who were approved and mine was not.

5. It is now 2:30pm on 14 April 2014.  Following the issue of the application, the matter was listed before Registrar Bochner on 18 July 2014.  On that occasion, the applicant appeared in person and Ms Diaminatou appeared for the Minister. 

6. The application was listed for hearing on 24 February 2015 at 10:15am.  The applicant was directed to file any amended application by 12 September 2014, together with any further material on which she might wish to rely. 

7. The Minister was directed to file his material on or before 26 September 2014 and to file any outline of submissions three days prior to the hearing.  This followed an order that the applicant filed her submissions ten days prior to the hearing. 

8. As is clear, the hearing on 24 February 2015 did not proceed.  The reason for that was that on 16 February 2015, Ms Kaur sent an email to the Court’s registry in South Australia.  She wrote as follows:

   My hearing date is due on 24 February 2015.  I am still collecting my documents but my exams is during the same week of my scheduled hearing.  As a result, I cannot give time to prepare for the hearing.  Please give me a later date, preferably after April 2015 as I hope to arrange all paperwork by that time.  I have also enclosed my exam timetable with this email.

9. The court wrote to the applicant and indicated that the hearing could not be deferred without the acquiescence of the Minister or his representative.  As a consequence, on the applicant’s behalf, communications were sent by the court to the solicitors for the Minister who advised that the Minister neither consented nor objected to the adjournment request. 

10. On that basis, the proceedings were adjourned and a letter was sent in electronic form to both the Minister and Ms Kaur.  The matter was fixed for 14 April 2015 at 2.15pm and Ms Kaur was advised that she needed to be at court and to attend on that date. 

11. Accordingly, it is clear to me that the proceedings were adjourned to assist the applicant.  She has not appeared at court today.  In addition, she has not filed any submissions in respect of her application nor filed any more detailed application. 

12. Against that background, Mr Tredrea, counsel for the Minister, seeks the dismissal of the application pursuant to the provisions of rule 13.03C of the Federal Circuit Court Rules 2001.  That rule provides that if a party is absent from a hearing, if that absent part is an applicant, the court has the authority to dismiss the application in question.

13. Like all discretions which have implications for the rights of a party, such a discretion must be exercised judicially.  In terms of how such a discretion is to be exercised, I must look at all the particular circumstances, including the overall merits of the case concerned.  In addition, in this case, the applicant has provided no explanation as to why she has not appeared in court today. 

14. In my view, a review of the proceedings to date shows that on the one hand, the applicant has been granted accommodation in respect of the hearing of the matter and on the other, she has not availed herself of the opportunity to expand upon her case and provide submissions in support of it. 

15. The applicant is an Indian national, who applied for a temporary student visa on 21 June 2013. On 10 September 2013, a delegate of the Minister refused to grant the visa in question which is subject to a number of conditions which are contained in clause 573.227 of schedule 2 of the Migration Regulations.  In particular, an applicant is required to establish that exceptional reasons pertain to the granting of the visa in question. 

16. At an early stage, a representative of the applicant wrote to the Migration Review Tribunal to outline why it was submitted that exceptional circumstances pertained to the grant of the visa. 

17. In broad terms, it was said that Ms Kaur had always had an urge to study abroad.  She apparently holds an undergraduate degree from a university in India and has an undergraduate degree in education as well.  However, it has long been her wish to study overseas. 

18. She married young, on her submission as a consequence of familial pressure applied to her.  She came to this country with her spouse, who was the recipient of a subclass 485 visa.  That, in essence, is the basis why it is said her circumstances are exceptional.

19. This material was considered by the Tribunal and is alluded to in its decision.  The Tribunal did not accept that this was an exceptional reason for the grant of the subclass visa in question and therefore it declined to do so. 

20. It is the Minister’s submission that there is no error in the MRT's decision.  Rather, it is submitted that this was a decision which fell within the jurisdictional remit of the Tribunal and was one which was open to it.  As such, it is not reviewable by this court.

21. I agree with that submission.  The MRT considered the issue before it and determined it.  It considered the submissions made on behalf of the applicant and rejected them.  In my view, there is no evidence that there was any procedural unfairness to the applicant concerned.

22. Accordingly, I find that the applicant has provided no explanation as to her non-appearance today.  And secondly, there is no obvious error in the decision concerned. 

23. In addition, the proceedings arise as a consequence of what can be categorised, I think, as an inchoate appeal for a rehearing of the merits of the case.  As this is a privative clause decision, I do not have the authority to conduct such a rehearing. 

24. For all those reasons, I have decided that I should dismiss the proceedings pursuant to the rules as sought by the Minister.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:              29 May 2015