KUMAR v Minister for Immigration
[2018] FCCA 1353
•15 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1353 |
| Catchwords: MIGRATION – Student (temporary) (class TU) (subclass 572) visa – application for reinstatement where proceeding dismissed for non-attendance – applicant claimed to have been incapacitated – medical certificates provided by the applicant broad and imprecise – applicant gave no meaningful explanation for non-attendance at hearing before this court – application for reinstatement refused. |
| Legislation: Migration Regulations 1994, cls.572.223(2)(c), 5A480(2)(aa) |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 Craig v State of South Australia (1995) 184 CLR 163 Kim v Minister for Immigration and Citizenship [1990] FCA 162 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu-Shan-Liang (1996) 185 CLR 259 NAKX v Minister for Immigration and Multicultural Affairs [2003] FCA 1559 SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 SZOPV v Minister for Immigration and Border Protection [2016] FCA 514 VAAD v Minister for Immigration and Indigenous Affairs [2005] FCAFC 117 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 |
| Applicant: | KISHORE KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2429 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 15 May 2018 |
| Date of Last Submission: | 15 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
This proceeding is dismissed.
The applicant to pay the first respondent’s costs in the sum of $2,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2429 of 2015
| KISHORE KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
By application in a case filed 7 May 2018 the applicant applied to reinstate a proceeding that was dismissed for non-appearance on 18 April 2018. For the reasons that follow I am not satisfied that the applicant has demonstrated that his explanation for his non-appearance is adequate, with the consequence that this application for reinstatement is refused.
Short factual narration
By application filed 29 October 2015 the applicant applied to this court for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the delegate of the minister not to grant the applicant a student (temporary) (class TU) (subclass 572) visa.
The matter was fixed by a registrar on 2 February 2018. My chambers sent a notice of listing to the applicant and to the minister’s representative by post, indicating that the proceeding was fixed for hearing at 2:15pm on 18 April 2018 as a final hearing before me. On 18 April 2018 when the proceeding was called on the applicant failed to appear and I therefore dismissed the proceeding, ordering the applicant to pay the minister’s costs in accordance with the usual practice of the court as sanctioned by authorities including SZIDH v Minister for Immigration and Citizenship.[1]
[1] [2007] FCA 369 at [6]
Application for reinstatement
The applicant has applied to this court to reinstate the proceeding. In an affidavit sworn by the applicant on 7 May 2018, the applicant claimed to have been incapacitated on the day of the final hearing on 18 April 2018. He attached three medical certificates, the third of which was illegible.
The first medical certificate, dated 17 April 2018 stated that the applicant was “suffering from a medical condition” and that he “will be unfit for work from 17 April 2018 until 19 April 2018 (inclusive)”. The second medical certificate dated 20 April 2018, issued after the final hearing, stated in similar terms that the applicant was “suffering from a medical condition” and that he “will be unfit for work from 20 April 2018 until 20 April 2018 inclusive”.
A medical certificate was received in the registry of this court by facsimile on the day of the final hearing. However, that document was not forwarded by the registry to my chambers. The medical certificate sent by facsimile to the registry was identical to the first medical certificate annexed to the applicant’s affidavit.
At all events, the medical certificate was in extremely broad and imprecise terms. As Ms Symons of counsel for the minister correctly pointed out before me today the medical certificate did not indicate why the applicant could not have made contact with the court, or indeed asked for a telephone appearance. The document did not go into any detail to explain why the applicant was prevented from travelling to court or participating in any shape or form in the court hearing. A medical certificate in that form has been the subject of judicial denunciation by Lindgren J in a decision NAKX v Minister for Immigration and Multicultural Affairs.[2] It seemed to me that the explanation that the applicant purported to give about his non-appearance on 18 April 2018 was woefully inadequate and I am not persuaded that he has explained his failure to appear in a meaningful way.
[2] [2003] FCA 1559 at [6]
At one level it therefore is unnecessary for me to embark upon any examination of his prospects of success in this case because the applicant failed to explain his non-appearance. However, lest the applicant would otherwise feel hard done by, I will now address in some small measure the merits of his case, ultimately leading to the conclusion that he had no prospects of success.
On 7 October 2015 the Administrative Appeals Tribunal affirmed the decision of the minister’s delegate not to grant the applicant the student (temporary) (class TU) (subclass 572) visa that the applicant sought. He sought judicial review of the tribunal’s decision on 29 October 2015. He relied on three grounds. They were as follows –
1.I seek an order that the decision of the delegate of the minister and the migration review may be squashed and be replaced with a more favourable one.
2.I claim that the circumstances due to which my non-compliance of the visa occurred were beyond my control.
3.I shall submit more evidence and statements in due course of time.
(errors in original)
Surprisingly, on those poorly articulated grounds, a registrar of this court made orders that the case proceed to final hearing. A registrar did that on 30 March 2016. The case should have been addressed by the show cause method prescribed by r.44.12 of the Federal Circuit Court Rules.
The issue in this case was whether the applicant has demonstrated the existence of jurisdictional error on any of the grounds alleged, bearing in mind that the onus is on the applicant to establish the relevant factual foundation as was held in VAAD v Minister for Immigration and Indigenous Affairs.[3] The applicant was required to establish the existence of jurisdictional error, according to Minister for Immigration and Citizenship v SZGUR.[4]
[3] [2005] FCAFC 117
[4] (2011) 241 CLR 594
Synopsis
For the reasons that follow in my judgement the tribunal did not fall into jurisdictional error.
Some general observations
Before addressing the details of the application it is relevant to point out certain issues of general application.
First, to the extent that in ground 1 the applicant put in issue the decision of the minister’s delegate, this court on the hearing of an application for judicial review is not concerned with the decision of the delegate or events in the conduct of the delegate’s activity. On an application for judicial review, the reviewing court is only concerned with the decision of the tribunal, as was held in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs.[5] Accordingly, it is not to the point to undertake a review of what the delegate did or did not do as only the decision of the tribunal and the conduct of the hearing before it was relevant to this case.
[5] (2004) 139 FCR 344
Second, in an application for judicial review, it is impermissible for the reviewing court to engage in a merits review. The authorities on that point are of serious veneration. They include Australian Broadcasting Corporation v Bond,[6] Attorney-General (NSW) v Quin,[7] Kim v Minister for Immigration and Citizenship[8] and Minister for Immigration and Ethnic Affairs v Wu-Shan-Liang.[9] To the extent that, in ground 1 the applicant wanted the review of the delegate’s decision and its replacement by a more favourable one, then that is not the function of judicial review. That is more akin to a merits review. Based on the authorities of Bond, Quin, Kim and Wu-Shan-Liang, I am not permitted to undertake a merits review on the hearing of a judicial review application.
[6] (1990) 170 CLR 321
[7] (1990) 170 CLR 1
[8] [1990] FCA 162
[9] (1996) 185 CLR 259
Third, in an application for judicial review where no particulars to support the grounds are given, it is often impossible for a reviewing court to distil whether a valid basis for jurisdictional error is demonstrated. Commonly, jurisdictional error is alleged along one or more of the lines set out in Craig v State of South Australia,[10] namely where the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.
[10] (1995) 184 CLR 163
Of course those are illustrations only of the ambit of jurisdictional error and, as the High Court said in Kirk v Industrial Court (NSW),[11] it is neither necessary nor desirable to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig does not provide a rigid taxonomy on the point.
[11] (2010) 239 CLR 531
Here, as no particulars of any description were given, it was impossible to say on what matters of fact or law the applicant was proceeding when asserting the existence of jurisdictional error. A ground of review that is expressed at such a level of generality as not to be meaningful is amenable to being dismissed, as has been held in such cases as WZATH v Minister for Immigration and Border Protection,[12] BHK15 v Minister for Immigration and Border Protection,[13] AQN15 v Minister for Immigration and Border Protection[14] and WZAVW v Minister for Immigration and Border Protection.[15]
[12] [2014] FCA 969
[13] [2016] FCA 569
[14] [2016] FCA 571
[15] [2016] FCA 760
Consistent with its obligations as a model litigant, the minister took the view that in reality the applicant was agitating two issues, those being –
a)whether the tribunal properly applied the law; and
b)whether the tribunal dealt with this case in conformity with obligations of procedural fairness.
Before addressing the case when cast in that manner, it is necessary to narrate certain of the background.
The applicant, an Indian citizen, applied for a student visa on 10 July 2014. After providing various documents to the department, the minister’s delegate decided on 12 November 2014 that the applicant did not meet the criteria of cl.572.223(2)(c) of the Migration Regulations with the consequence that the delegate refused the applicant’s visa application.
Being dissatisfied with that outcome, on 24 November 2014 the applicant sought a merits review in the tribunal. On 21 August 2015, the tribunal invited the applicant to appear before it on 1 October 2015 and to produce documentation that demonstrated that the applicant had sufficient funds to satisfy the relevant criteria. On 24 September 2015 and also on 30 September 2015 the tribunal sent the applicant an SMS reminder of the upcoming hearing.
The applicant did not attend the hearing on 1 October 2015. A representative of the applicant did not attend before the tribunal on 1 October 2015. The tribunal determined the applicant’s claims in his absence.
The tribunal correctly posed the issue for its determination as being whether the applicant was a genuine applicant for entry and stay as a student, that requirement being set out in cl.572.223 of the regulations. The tribunal stated that the applicant, as the holder of an Indian passport, was required to give evidence against assessment level 3, that being the assessment level corresponding to a subclass 572 as set out in pt.4 of sch.5A to the regulations.
The tribunal recorded that the applicant was invited to provide evidence that he satisfied sch.5A requirements relating to his financial capacity in that he had access to funds to pay his course fees and living expenses for the period of his intended studies in Australia. The tribunal stated that the evidence provided by the applicant raised serious questions about the availability of funds. The tribunal recorded that the delegate was not satisfied about the applicant’s access to sufficient funds. The tribunal stated that the applicant was invited to provide supporting evidence to the tribunal but that the applicant failed to provide that evidence. The tribunal found that there was no evidence before it that the applicant met the requirements of cl.572.223(2)(c).
The tribunal therefore affirmed the delegate’s decision not to grant the applicant the student (temporary) (class TU) (subclass 572) visa that he sought.
In support of the minister’s contentions that the tribunal correctly applied the relevant clauses, Ms Symons of counsel addressed cl.5A408 of the regulations and the requirements that the applicant needed to meet, but which the applicant failed to meet. Ms Symons submitted, correctly in my view, that it was of no consequence that the tribunal did not separately consider each piece of financial evidence the applicant provided. The delegate had raised concerns about the integrity of some of the information the applicant had provided. In paragraph 5 of the tribunal’s invitation for the applicant to attend before the tribunal, it had specified that the applicant was required to provide documentation that demonstrated he had sufficient funds to pay course fees and other related expenses.[16] Under cl.5A480(2)(aa) of the regulations, the applicant was required to show the existence of a money deposit that an acceptable individual had held for at least three months immediately before the date of the visa application. On the facts of this case, none of the evidence provided by the delegate demonstrated that the funds were held at any time prior to the visa application. Ms Symons submitted that the applicant was unable to meet the requirements of cl.5A408(2)(aa) of the regulations.
[16] Court book filed 14 April 2016 at 84.
In my view the minister’s position on that point was correct. The applicant failed to prove that cl.5A480(2)(aa) was met. It followed that the applicant failed to show that cl.572.223 was met.
As to the second ground of judicial review, the minister’s counsel submitted that the applicant was ventilating compliance with s.360 of the Migration Act. Relevantly condensed, the submission from Ms Symons was as follows –
a)s.360 of the Act required the tribunal to follow a particular procedure when inviting the applicant to appear before it;
b)the hearing notice given in this case contained the information required by s.360A(1) and the hearing notice was sent to the applicant’s email address in the manner required by s.360A(2)(a), and s.379A(5)(d) of the Act;
c)following the applicant’s failure to appear at the scheduled hearing, the tribunal proceeded to make a decision on the review without taking action to enable the applicant to appear before it, as was allowed by s.362B(1A) of the Act;
d)proceeding in that manner was within the tribunal’s discretion after the tribunal had invited the applicant to put documents to it, and after two SMS messages had been sent to the applicant reminding him of the hearing; and
e)the facts of this case were very different to those in Minister for Immigration and Citizenship v Li & Anor.[17]
[17] (2013) 249 CLR 332
As to the proposition that reminder SMS messages had been sent to the applicant, the minister relied on the decision of Pagone J in SZOPV v Minister for Immigration and Border Protection.[18] There is considerable force in that submission.
[18] [2016] FCA 514
In my view the tribunal proceeded in a manner that was wholly conformable with procedural fairness.
Conclusion
Even in a form as the minister cast the applicant’s grounds, both grounds fail.
The application for judicial review had no prospect of success. In my view, having regard to the wholly defective explanation for the applicant’s failure to appear on 18 April 2018, and my finding that the application had no prospects of success, I refuse the application to reinstate this proceeding.
I dismiss this proceeding and order the applicant to pay the minister’s costs fixed in the sum of $2,400.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 24 May 2018
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