Kaur v Minister for Immigration
[2014] FCCA 1926
•18 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1926 |
| Catchwords: MIGRATION – Application to reinstate substantive proceedings – inadequate reason for failure to attend prior hearing – application without merit – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth) |
| MZYE v Minister for Immigration and Citizenship [2013] FCCA 569 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 |
| Applicant: | RAMANDEEP KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 11 of 2014 |
| Judgment of: | Judge Whelan |
| Hearing date: | 18 August 2014 |
| Date of Last Submission: | 18 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 18 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the First Respondent: | Ms Randall-Smith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application in a Case filed by the Applicant on 30 July 2014 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 11 of 2014
| RAMANDEEP KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Background
This is an application in a case[1] under Rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) seeking reinstatement of an application for judicial review of a decision (“the application in a case”) by the Migration Review Tribunal (“the Tribunal”) of 12 December 2013, to uphold a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) visa.
[1] Application in a case filed 29 July 2014.
The substantive application was set down for hearing on 2 July 2014. The Applicant failed to appear and the application was dismissed.[2]
[2] Orders of Judge Whelan dated 2 July 2014.
In her affidavit[3] in support of the application in a case, the Applicant states:
I was not able to attend my hearing because of my serious back pain that I was suffering from. I had sent the certificate from my Doctor to Immigration’s lawyer on 30 June through email. I was hoping that the hearing would be postponed but it was not. I have attached the medical certificate & my email request. I will provide more information if needed.[4]
[3] Affidavit of Ramandeep Kaur filed 29 July 2014
[4] Affidavit of Ramandeep Kaur filed 29 July 2014 at p.1.
The affidavit attaches a medical certificate from a
DR SARITA KOTUR (“Dr Kotur”) dated Monday, 30 June 2014
(“the medical certificate”). The medical certificate states:
This is to certify that I have today examined:
Ms Ramandeep Kaur
In my opinionRamandeep [sic] will be unfit for work and travel from 30/06/2014 to 5/07/2014 inclusive.[5]
[5] Medical certificate dated 30 June 2013 and signed by Dr S Kotur, attached to the affidavit of Ramandeep Kaur filed 29 July 2014.
The substantive application[6] is supported by an affidavit which states: “I want to appeal against MRT decision to refuse my visa application on the basis that I was not given procedural fairness”.[7]
[6] Application filed 3 January 2014.
[7] Affidavit of Ramandeep Kaur filed 3 January 2014.
The Tribunal’s decision
The issue before the Tribunal was whether the Applicant met the requirements of the relevant regulations of the Migration
Regulations 1994 (Cth) (“the Regulations”) and, in particular, whether she met the enrolment requirements for a student visa. With some limited exceptions, not applicable in this case, the Regulations require that, at the time of the decision, an applicant must be enrolled in or have a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under the Regulations.The Tribunal’s findings included the following:
·The Applicant acknowledged that she was not enrolled in the period from 20 July 2010 until 13 February 2012;[8] and
·The Applicant said that she was not currently enrolled as her confirmation of enrolment had expired on 30 March 2013.[9]
[8] First Respondent’s Contentions of Fact and Law filed 17 June 2014, pp1-2 at para.2.
[9] First Respondent’s Contentions of Fact and Law filed 17 June 2014, p.2 at para.9.
The Tribunal also found that: “there was no evidence before the Tribunal that the Applicant was enrolled in or had a current offer of enrolment in any applicable course of study”.[10]
[10] First Respondent’s Contentions of Fact and Law filed 17 June 2014, p.2 at para.8.
For those reasons the Tribunal found that the Applicant did not satisfy the relevant criteria for the granting of a visa.
Consideration
The Court has the power to set aside a judgment order where the order was made in the absence of a party but only if the Court considers that it is in the interests of justice to do so.
In deciding whether to grant the application, the Court must be satisfied that:
·There is an adequate reason for the non-appearance of the applicant;
·There is an arguable case on the merits of the substantive application; and
·It is in the interests of justice to allow the application to proceed.
The Applicant states that she was unable to attend the Court on the designated day because she was suffering from “back pain”.[11] The Applicant has produced a medical certificate which does not specify the medical condition from which she was suffering and states merely that she was “unfit for work or travel” between 30 June and
5 July 2014. [12]As Judge Riethmuller noted in MZYZE v Minister for Immigration and Citizenship [2013] FCCA 569 at paragraph [24]:
Of course, it will be a rare case where a person is so ill as to prevent their attendance at a Tribunal hearing. Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment.[13]
[11] Affidavit of Ramandeep Kaur filed 29 July 2014 at p.1.
[12] Medical certificate dated 30 June 2013 and signed by Dr S Kotur, attached to the affidavit of Ramandeep Kaur filed 29 July 2014.
[13] [2013] FCCA 569 at para.24
Further, the medical certificate provided by the Applicant does not specify for what ‘travel’ the Applicant was unfit: overseas travel; air travel; or travel between Springvale and the city?
As Lindgren J commented in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”)at paragraph [6]:
The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
With respect to the grounds for review, the First Respondent submits that: “The Applicant was on notice that she was required to produce evidence of her current enrolment or offer of enrolment by the letter dated 9 September 2013 (CB 45-46)”.[14] When the Applicant attended the hearing on 14 October 2013 she was again put on notice of that issue. She requested “one more chance”[15] to provide the evidence. While the Tribunal would not postpone the hearing, the Tribunal indicated that it would consider any information received before making its decision. The decision was not issued until two months later. No further evidence was produced by the Applicant during that time.
[14] First Respondent’s Contentions of Fact and Law filed 17 June 2014, p.3 at para.12.
[15] Ibid at para.13.
Conclusion
I am not satisfied that the Applicant had provided an adequate reason for her failure to attend the hearing in this Court on 2 July 2014. The medical certificate produced provides no detail of the ailment which would cause her to be unfit for work or travel nor does it address the critical issue which was her capacity to participate in the Court process.
With respect to the merits of the substantive case, the Applicant claims that she was denied procedural fairness. The Applicant applied for the visa on 29 June 2012. The application was refused by the delegate on 17 August 2012. The Applicant was invited by the Tribunal to provide evidence of enrolment on 9 September 2013. At the hearing on
14 October 2013, she was unable to produce such evidence. The Tribunal declined to adjourn the proceedings but did not make a determination until 12 December 2013. While the Tribunal’s decision was based on the failure of the Applicant to provide evidence of enrolment or an offer of enrolment, the Tribunal also referred to the failure of the Applicant to remain enrolled in the period between
20 July 2010 and 13 February 2012 as a particularly significant breach of condition 8202 of her previous visa.
The Tribunal is not required to grant an adjournment of proceedings. While in some circumstances, a refusal to grant an adjournment may be so unreasonable as to amount to an error on the part of the Tribunal,[16] I am not of the view that such circumstances exist in this case.
[16] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
I am therefore not satisfied that it is in the interests of justice to grant the application in a case and vacate the orders made on 2 July 2014.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 26 August 2014
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