Kothapally v Minister for Immigration and Multicultural Affairs
[2025] FCA 180
•7 March 2025
FEDERAL COURT OF AUSTRALIA
Kothapally v Minister for Immigration and Multicultural Affairs [2025] FCA 180
Appeal from: Kothapally v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 917 File number(s): NSD 418 of 2021 Judgment of: DOWLING J Date of judgment: 7 March 2025 Date of publication of reasons: 11 March 2025 Catchwords: MIGRATION – application for leave to appeal from decision of the Federal Circuit Court – no appearance from applicant – applicant did not establish sufficient doubt to warrant reconsideration of decision of Federal Circuit Court – no evidence or submissions demonstrating substantial prejudice resulting from refusing leave to appeal – application dismissed with costs Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) r 35.13
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd [2025] FCAFC 12
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 7 March 2025 Counsel for the applicant: The applicant did not appear Solicitor for the First Respondent: Carmen Juarez of MinterEllison Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 418 of 2021 BETWEEN: SOUMITH KOTHAPALLY
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DOWLING J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the ‘Minister for Immigration and Multicultural Affairs’.
2.The application for leave to appeal be dismissed.
3.The applicant pay the first respondent’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)DOWLING J
The applicant, Mr Soumith Kothapally, seeks leave to appeal from an interlocutory decision of a judge of the then Federal Circuit Court of Australia. The primary judge dismissed the applicant’s application for judicial review at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the basis that he was not satisfied the application raised an arguable case of relevant error. That dismissal is defined under the FCC Rules as an interlocutory decision. Therefore, leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The primary judgment is Kothapally v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 917.
The application before the primary judge was an application for judicial review of a decision of the Administrative Appeals Tribunal affirming the decision of the delegate to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa (student visa) on the basis that he did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). Those requirements are that the applicant is a “genuine applicant for entry and stay as a student”.
In his application for leave to appeal to this Court, the applicant relies on three grounds. They are:
(1)The decision of honourable Court is affected by jurisdictional error;
(2)The honourable Judge Street did not adapt a fair process in making a decision and incorrectly interpreted the law; and
(3)The honourable Judge Street failed to consider that each has its own facts and merits and ought to consider on a case by case basis.
It appears that the applicant also applies for an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth) which provides a deadline for the filing of an application of this type. There is no dispute that the applicant complied with r 35.13, so there is no need to deal with that application if it is made.
In his affidavit in support of his application for leave to appeal, the applicant also says the following:
(1)The decision of the Court/Tribunal is affected by incorrect principle of law.
(2)The honourable Judge Street made an error in interpreting the migration Regulation and migration PAM.
Reading the application for leave to appeal and affidavit in support of that application, together and as generously as possibly, they provide for six discrete grounds, namely:
(1)The decision of the Circuit Court is affected by jurisdictional error;
(2)The primary judge did not adopt a ‘fair process’ in making a decision;
(3)The primary judge incorrectly interpreted the law;
(4)The primary judge failed to consider the facts and merits of the case before him;
(5)The decision of the Circuit Court or Tribunal is affected by incorrect principles of law; and
(6)The primary judge made an error in interpreting the Migration Regulations and Migration Procedure Advice Manual.
On the day of the hearing, the applicant did not appear. The matter was called three times outside the courtroom and again there was no appearance from the applicant. I adjourned the matter briefly so that my chambers could attempt to contact the applicant by telephone and email. The applicant did not answer the telephone call from my chambers. The applicant did not respond to the email from my chambers. That email from my chambers also provided a videoconference link if the applicant wished to appear remotely. The applicant did not use that link. Following the adjournment, the matter was again called outside the courtroom and again the applicant did not appear.
I am satisfied that the applicant was notified of the hearing today. On 19 December 2024, the Court emailed the parties, notifying them that the application was listed for hearing on 7 March 2025. On 17 January 2025 and 10 February 2025, the first respondent emailed the applicant with details of the hearing, including its date, time, and place. On 5 March 2025, the Court emailed the parties and requested confirmation of appearances for the hearing on 7 March 2025. On each occasion the email address used was the email address provided by the applicant in his application.
Given the history of this matter, rather than exercise any power in default of appearance, I have determined the matter on its merits. I have addressed each of the grounds referred to above. For the reasons that follow, I dismiss the appeal with costs.
CHRONOLOGY OF EVENTS
The applicant is a citizen of India. The applicant arrived in Australia on 19 November 2015. The applicant was granted a student visa in November 2015 that was valid until March 2018.
On 13 March 2018, the applicant applied for a further student visa.
On 30 April 2018, a delegate of the Minister refused to grant the student visa to the applicant because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and therefore did not satisfy the requirements of cl 500.212 of Schedule 2 of the Regulations.
On 16 May 2018, the applicant applied to the Tribunal for it to review the delegate’s refusal.
On 6 November 2019, the Tribunal wrote to the applicant inviting him to provide information regarding whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student. The applicant responded in writing. He consented to the matter being determined without a hearing. He confirmed that he did not have a current confirmation of enrolment in a registered course of study. He said that he was “currently not studying”.
Tribunal decision
On 4 March 2020, the Tribunal affirmed the delegate’s decision to refuse to grant a student visa (the Tribunal decision). The Tribunal was not satisfied that the applicant was enrolled in a course of study as required by cl 500.211(a): Tribunal Decision at [21].
The Tribunal stated that it had read the applicant’s written response but found that the applicant did not provide further information in response to its invitation of 6 November 2019 and was therefore not entitled to appear before it pursuant to s 360(3) of the Act: Tribunal decision [6]-[7]. The Tribunal found that, in the applicant’s written response, he had enrolled in, but did not complete, three courses. Additionally, the Tribunal found that the applicant responded “no” to the Tribunal asking him whether he had a “current Confirmation of Enrolment?”: Tribunal decision [18]-[19].
The Tribunal found that the applicant did not meet the criteria for the grant of a subclass 500 (Student) visa because there was no evidence that the applicant was currently enrolled in a registered course of study. The Tribunal affirmed the decision of the delegate to the Minister: Tribunal Decision [20]-[23].
Federal Circuit Court decision
On 31 March 2020, the applicant applied for judicial review of the Tribunal’s decision in the then Federal Circuit Court.
At a hearing on 4 May 2021, the Federal Circuit Court found:
(a)at the time of the Tribunal’s decision, the applicant was not enrolled in a course of study: primary judgment at [6].
(b)the applicant had consented to the Tribunal determining a review without a hearing: primary judgment at [6].
(c)the applicant was on notice of the need for him to be currently enrolled in a course of study: primary judgment at [6].
(d)the applicant did not identify any arguable case of relevant error by the Tribunal: primary judgment at [7].
(e)the Court was not satisfied the application raised an arguable case for the relief claimed: primary judgment at [8].
(f)it was an appropriate matter to exercise the Court’s power to dismiss a proceeding under r 44.12 of the FCC Rules: primary judgment at [9].
Leave to appeal
The applicant filed his application for leave to appeal to this Court, together with his supporting affidavit, on 7 May 2021.
On 7 February 2025, the respondent filed written submissions stating that the Court should refuse to grant the applicant leave to appeal. The applicant did not file any written submissions in support of his application.
The application for leave to appeal was heard on 7 March 2025. As set out above, the applicant did not appear. The Minister relied upon his written submissions of 7 February 2025 and supported those submissions orally.
GROUNDS OF APPLICATION
As identified above, and reading the applicant’s application for leave to appeal and supporting affidavit as generously as possible, the grounds are as follows:
(1)The decision of the Circuit Court is affected by jurisdictional error;
(2)The primary judge did not adopt a ‘fair process’ in making a decision;
(3)The primary judge incorrectly interpreted the law;
(4)The primary judge failed to consider the facts and merits of the case before him;
(5)The decision of the Court or Tribunal is affected by incorrect principles of law; and
(6)The primary judge made an error in interpreting the Regulations and Migration Procedure Advice Manual.
PRINCIPLES AND CONSIDERATION OF GROUNDS
As identified above, the primary judge dismissed the application pursuant to r 44.12(1)(a) of the FCC Rules. Such a dismissal is defined in the FCC Rules as an interlocutory decision: r 44.12(2). Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal to this Court.
The principles relevant to the grant of leave to appeal are set out in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 (Sheppard, Burchett and Heerey JJ) at 398 – 400, recently cited by Nicholas, Jackson and Rofe JJ in Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd [2025] FCAFC 12 at [156]. For leave to be granted, the applicant must show that the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration by this Court and that substantial injustice would result if leave to appeal was refused, supposing the decision to be wrong. The applicant must usually satisfy both limbs for leave to appeal to be given.
Ground one
Ground one is a bare allegation of jurisdictional error by the primary judge. The applicant did not provide any particularisation or explanation about how the primary judge is alleged to have erred. Without particularisation or explanation, the ground does not establish any error in the primary judge’s reasons. I do not discern any error by the primary judge. Ground one does not establish that the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration.
Ground two
Ground two is an unparticularised assertion that the primary judge failed to afford the applicant procedural fairness. On 4 June 2020, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit, evidence, and submissions in the application before the primary judge. No such documents were filed: primary judgment at [3]. The applicant attended the show cause hearing before the Federal Circuit Court on 4 May 2021, and, with the assistance of an interpreter, had the nature of the hearing explained to him: primary judgment at [4]. The applicant made oral submissions to the Federal Circuit Court: primary judgment at [5]. There is no evidence before me that the primary judge failed to afford the applicant procedural fairness. Ground two does not establish sufficient doubt in the primary judge’s decision to warrant its reconsideration.
Ground three
Ground three alleges that the primary judge incorrectly interpreted the law. The applicant did not particularise or explain that allegation. The applicant did not state which part of the law he said was incorrectly interpreted. I am unable to discern any incorrect interpretation of the law by the primary judge. Ground three does not establish any sufficient doubt in the primary judge’s decision to warrant its reconsideration.
Ground four
Ground four alleges that the primary judge failed to consider the facts and merits of the case before him. The Minister submits, and I accept, that ground four is an invitation to engage in impermissible merits review of the primary judge’s decision. In any event, again there is no particularisation or explanation about how the facts and merits of the case were not considered. Ground four does not establish any sufficient doubt in the primary judge’s decision to warrant its reconsideration.
Ground five
Ground five alleges that the decision of the Court or Tribunal was affected by incorrect principles of law. The applicant does not identify which part of the primary judge’s decision or the Tribunal’s decision was affected by incorrect principles of law. The applicant does identify the incorrect principles of law. I am unable to discern any application of incorrect principles of law by the primary judge or the Tribunal. Without more, ground five does not establish any jurisdictional error by the Tribunal and does not establish any sufficient doubt in the primary judge’s decision to warrant its reconsideration.
Ground six
Ground six alleges the primary judge made an error in interpreting the Regulations and Migration Procedure Advice Manual. Again, there was no explanation about that alleged error. There was no identification of any parts of the Regulations or Manual that was said to be erroneously interpreted. I am unable to discern any error in the interpretation of the Regulations or Manual. Ground six does not establish any sufficient doubt in the primary judge’s decision to warrant its reconsideration.
Conclusion on grounds of application
Nothing in the grounds of appeal identify an appealable error by the primary judge or jurisdictional error by the Tribunal. I am not satisfied that there is sufficient doubt to warrant reconsideration of the primary judge’s decision. Further, the applicant has not provided any submissions or evidence about how the refusal to grant leave would result in him suffering substantial injustice, supposing the primary judge’s decision was wrong. I refuse to grant leave for the applicant to appeal.
DISPOSITION
For all of the reasons set out above, the application for leave to appeal is dismissed. The Minister is entitled to costs to be taxed if not agreed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling. Associate:
Dated: 11 March 2025
0
3
4