Kumar v Minister for Immigration

[2015] FCCA 925

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 925

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application discloses no formal grounds – inchoate plea for fairness – no jurisdictional error established – no appearance by applicant – application dismissed.

Legislation: 

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

Applicant: SONI KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 245 of 2014

Judgment of: Judge Brown

Hearing date: 27 February 2015

Date of Last Submission: 27 February 2015

Delivered at: Adelaide

Delivered on: 27 February 2015

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the First Respondent: Ms Stokes

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Ms Stokes

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The Applicant pay the costs of the First Respondent fixed at SIX THOUSAND AND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

2. The application filed on 3 July 2014 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADG 245 of 2014

SONI KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings, Soni Kumar, seeks the issue of constitutional writs to quash a decision of the Migration Review Tribunal, which was made on 6 June 2014. 

2. On that occasion, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a Student (Temporary) (Class TU) visa. 

3. The applicant has not appeared at court to pursue his application.  It is necessary, in those circumstances, for me to outline briefly the circumstances, which appear from the court file in respect of the listing of the matter before the Court.

4. The applicant filed his application on 3 July 2014.  He gives as his address for service in Australia an address in Waikerie in the Riverland area of South Australia. 

5. The applicant has prepared his own application.  It was made returnable before the Court on 1 August 2014 at 9.30 in the morning.  The record indicates that the applicant appeared at court on the first return date. 

6. On that occasion, he had the assistance of an interpreter in the Punjabi language.  He appeared before Registrar Bochner and the Registrar fixed the matter for hearing today, 27 February 2015 at 2:15pm.

7. Other directions were made by the Registrar on that occasion, including that the applicant file and serve an outline of submissions 10 business days prior to the hearing.  The applicant has not filed such an outline of submissions.  Nor has he taken opportunity of leave, which was granted to him, to amend his application. 

8. The respondent to the application, the Minister for Immigration and Border Protection, was directed to file submissions on which it sought to rely three business days prior to the hearing. 

9. The Minister has filed some submissions and I accept that those were served upon Mr Kumar, together with a letter indicating that the Minister wished the application to be finalised at hearing and would not consent to adjournment.

10. It is now 2.55pm, or thereabouts, on the date allocated for the hearing, 27 February. The applicant has not appeared. On that basis, the Minister’s representative, Ms Stokes, urges me to dismiss the application pursuant to the power granted to the Court by rule 13.03C of the Federal Circuit Court Rules. 

11. In brief, pursuant to the rule if a party to a proceedings is absent from a hearing the Court is authorised to dismiss the application, if the absent party is an applicant.  As with all discretions, that discretion has to be exercised judicially. 

12. In this case, I am satisfied that Mr Kumar was present when the application was fixed for hearing.  He had the assistance of an interpreter and the Registrar’s listing report indicates that the orders were explained to Mr Kumar, and he confirmed in court that he understood the orders. 

13. Today the applicant has not sought to appear by telephone.  He has not sought a deferral of the application, nor as very frequently happens, has he sent a medical certificate indicating that he is unwell.

14. It is also, I think, illustrative to analyse the history of the application both before the Migration Review Tribunal itself and when the matter under the consideration of the Department. 

15. The applicant, as I understand matters, is a citizen of India.  He came to this country and applied for a student visa.  He did so on 15 December 2012. 

16. The matter came before a delegate of the Minister, who declined to grant the visa because a number of criteria associated with the grant of the visa in question had not been satisfied.  These included a failure on the part of Mr Kumar to provide evidence that he had funds to finance his study in Australia.

17. As a result of that decision, on 21 March 2012, the applicant applied for a review of the decision to the Migration Review Tribunal.  The Tribunal invited the applicant to appear before it.  That invitation was made on 30 April 2014 and the hearing was to take place on 30 May 2014. 

18. Prior to the date scheduled for the hearing, the Tribunal received a fax purported to be from the applicant, which included a medical certificate.  The medical certificate is included in the Court Book, and it is not capable of being read. 

19. Notwithstanding that, the proceedings were deferred a relatively short period of time to 6 June 2014.  The applicant was advised of the fresh date by both email and ordinary mail.  In addition, it should be noted with the original letter of invitation, the applicant was advised that he needed to bring along a number of documents, which related to the study he wished to pursue in Australia. 

20. The documents are clearly enumerated in the invitation letter.  The applicant did not appear at the hearing on 6 June.  In those circumstances, the Tribunal elected to proceed with the application. 

21. It was satisfied that the applicant had provided no evidence of his satisfaction of a number of criteria related to the grant of the visa concerned, the most significant omission being a certificate of enrolment in a course of approved study.

22. Thereafter, as I say, the applicant has commenced proceedings in this court.  He has prepared his own application.  The sole ground of his application is as follows:

    MRT refused my review application, stating that I don’t have current enrolment.  I receive letter from MRT about the hearing, but I was sick, so I sent them request to postpone the hearing.  I did not get any letter from MRT stating that my hearing is scheduled on 6 June 2014.  I was not aware about the hearing.  MRT stated that they tried to call me on 6 June 2014.  I live in regional Australia, and network coverage of phone is not good all the times.  I did not get a valid chance to present my case as my student visa was refused so colleges were not giving me admission, so they want student to hold student visa for admission.  I was stuck and rather than helping me and listen to my side MRT made a decision one sidedly.

23. The applicant made a plea for the adjournment of his initial hearing.  That was granted, notwithstanding the fact that, in my view, the evidence presented in support of the adjournment application was unsatisfactory.  The medical certificate in question did not provide a reason for infirmity and it could not be read. 

24. In addition, the certificate in question was presented at the very last minute following the applicant not being cooperative with the earlier procedure before the department.

25. The grounds of the current application appear to be that the applicant did not know of the adjourned date and there were problems with his mobile phone coverage.  Apart from his assertion of these matters, there is no evidence to support them.

26. I do not think it can be said that adjourning the application for a few days can be described as unreasonable.  Again, as I have indicated, the applicant has failed to appear to prosecute his application today and has provided no reasons for it.  My authority to interfere with the decision of the MRT is limited. 

27. An application for the issue of constitutional writs must establish that there is some form of legal error in what the original decision maker decided, or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

28. I can see no such jurisdictional error in respect of how the applicant was dealt with before the Tribunal.  He requested an adjournment on what I regard as somewhat flimsy grounds.  The application for adjournment was granted.  Thereafter, the applicant failed to appear.

29. The manner in which the Tribunal is directed to conduct reviews is set out in Part 5 of the Migration Act.  In particular, in Division 5 there is a code as to how reviews are to be conducted.  Pursuant to section 362B the Tribunal is authorised to dismiss an application if on invitation under section 360 an applicant fails to appear.  The Tribunal was thus granted a discretion to make a decision in the absence of an applicant.

30. In this case I am satisfied that there has been no improper exercise of that decision making authority, and on the basis of the evidence available to it, the Tribunal had no alternative other than to affirm the decision under review.  The evidence was that the applicant had failed to satisfy essential preconditions of the grant of the visa in question.

31. For all those reasons, I am satisfied that it is appropriate to dismiss the application pursuant to rule 13.03C in default of the appearance of the applicant. I reach that decision on the basis that, in my view, on the evidence available to me, there are no prospects of the applicant having any success in his application.

32. Secondly, I am satisfied that the applicant has been given proper notice of this hearing and knows of it, and has not appeared.  So for those reasons I will dismiss the application filed on 3 July 2014. 

33. The Minister seeks an award of costs, and as this is not a show cause hearing, I will fix costs in the sum of $6,646, which is the fee allowable pursuant to the schedule to the applicable rules.

34. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  24 April 2015