Kumar v Minister for Immigration
[2012] FMCA 251
•20 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 251 |
| MIGRATION – Review of decision of Migration Review Tribunal– application in a case made pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) – whether explanation of failure to appear at final hearing is satisfactory – whether explanation of delay in filing application in a case is satisfactory – whether substantive application for judicial review of decision of Migration Review Tribunal has any or any reasonable prospects of success. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03C, 16.05 Education Services for Overseas Student Act 2000 (Cth), s.20 Migration Act1958 (Cth), s.116 |
| Kumar v the Minister for Immigration & Anor [2010] FMCA 614 |
| Applicant: | VIKAS KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 981 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application in a Case, filed on 27 January 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 981 of 2011
| VIKAS KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 27 January 2012, the applicant filed an Application in a Case seeking the following orders:
“1. Section 20 cancellation revised notice was invalid.
2. Student visa reinstated.”
Those orders do not seek an order setting aside a decision made by this Court on 31 May 2011, which dismissed the applicant’s application for judicial review of a decision of the Migration Review Tribunal dated 19 April 2011 by reason of the applicant’s failure to attend the first Court date.
However, having regard to the fact that the applicant is not represented before this Court, I am prepared to accept that the Application in a Case is intended to seek an order pursuant to r.16.05 of the Federal Magistrates Court Rules2001 (Cth) (“the Rules”), seeking to set aside the Order made on 31 May 2011 dismissing with costs the applicant’s proceeding commenced by way of application filed on 16 May 2011, pursuant to r.13.03C(1)(c) of the Rules.
At the commencement of the hearing this morning, I explained to the applicant that the matters that would be particularly relevant to the Court in considering his application would be his explanation for his failure to appear at Court on 31 May 2011; his delay in filing his present application; and, whether there was any utility in the Court seeking to set aside the Court’s Order, made on 31 May 2011, dismissing the applicant’s substantive application for judicial review on the basis that it has no reasonable prospects of success.
In support of his application, the applicant read an affidavit sworn on 27 January 2012 and filed on that date. The affidavit, subject to rulings made by me in relation to an objection by the respondent is as follows:
“It was first time that I was away from my home. I was alone here I had no friends here. Suddenly I got news that my father got heart attack. I got very upset but I was unable to see him because of all this circumstances I could not concentrate on my studies. Then I got section 20 letter. It’s been 3 years I am struggling for my visa. I just want to complete my studies so that I can make my future bright in India. and I am appealing again in Federal Magistrates Court because last time I could not attend hearing because I was sick and I have medical certificate.”
The only relevant part of the affidavit which addresses the applicant’s explanation for his failure to appear on 31 May 2011 was the last part of the affidavit where he said he could not attend because he was sick, and that he has a medical certificate. The affidavit attached copies of two medical certificates. The solicitor for the first respondent, Mr Markus, accepted that those certificates are sufficient to explain the applicant’s failure to appear on that occasion, although, Mr Markus did note that he may have wished to have explored with the doctor the circumstances in which the certificate was issued.
The applicant’s affidavit otherwise offered no explanation as to the applicant’s delay of some eight months in filing his Application in a Case on 27 January 2012. The applicant sought leave to give that explanation orally. That leave was not opposed by the first respondent and leave was duly given to the applicant who then gave oral evidence as to his explanation, and was cross-examined on that evidence.
The substance of the applicant’s evidence was that the applicant telephoned the Federal Court of Australia on 31 May 2011, some time after the Court Orders had been made, to find out what had happened in his matter, and was told that his proceeding had been dismissed. The applicant’s only explanation, maintained by him throughout his own evidence and cross-examination, was that he had failed to take any further step because he did not know what would happen or what to do next. The applicant continued to deny that he received any notification from the Court or from the first respondent as to the Orders made by the Court on 31 May 2011.
The first respondent read the affidavit of Elizabeth Warner Knight, affirmed on 19 March 2012, and filed in Court this morning. That affidavit annexed a letter dated 31 May 2011 addressed to the applicant at his nominated address for service in Australia. The applicant confirmed in evidence this morning that he lived at that address at the relevant time. That letter enclosed a copy of the Orders made by me on 31 May 2011, and informed the applicant that his application had been dismissed on the ground of his failure to appear, and that he was required to pay the Minister’s costs in the sum of $550.
I note that on 6 June 2012, the Court also sent to the applicant at the applicant’s address for service, being the same address, a copy of the Orders made by the Court on 31 May 2012, together with the reasons for judgment given on that date.
The applicant said that he did not receive either of those letters, yet he appeared to be aware of the requirement that he pay $550, which he continued to refer to as a “fine” and which he has been paying at $50 a month. There is no other evidence before the Court to suggest the way in which the applicant may have become aware of that amount and I am satisfied that the sum to which the applicant refers to as a “fine” was, in fact, the Minister’s costs, required to be paid pursuant to Order 2 made by the Court on 31 May 2011. In light of the applicant’s knowledge that he was required to pay costs of $550, I do not accept that, at least, the letter dated 31 May 2011 from the Australian Government solicitor was not received by the applicant.
In any event, the applicant acknowledged that he knew on 31 May 2011 that his application had been dismissed but that he did not know what to do about the information.
In the circumstances, I am satisfied that the applicant has been aware since 31 May 2011, pursuant to his telephone conversation with the Federal Court of Australia and having received the letter from the respondent’s solicitors, dated 31 May 2011, that his proceeding, commenced by way of application filed on 16 May 2011 was dismissed by this Court on 31 May 2011, and that he received a copy of those Orders.
The applicant’s explanation that he did not know what step to take next and that he was waiting to be approached by either the first respondent or the Court is entirely unsatisfactory. He gave no evidence to the Court of any attempt to try and inform himself as to his appeal rights or what other steps he may be entitled to take.
I accept the submission by the solicitor of the first respondent that, in the circumstances, the applicant has entirely failed to satisfactorily explain his delay.
In relation to the applicant’s substantive application filed on 16 May 2011, the ground identified by the applicant is as follows:
“1. Section 20 letter is not valid.”
The applicant has not provided to this Court any Amended Application identifying any other ground, nor has he raised today any other ground or complaint about the Tribunal’s decision.
I asked the applicant on more than one occasion what was his complaint about the “section 20 letter”. His response each time was that he had a friend with a similar case, and the friend’s case was restored. I can only assume that means that his friend was successful. However, as I explained to the applicant that there was nothing before me in relation to that case, and without any further explanation from the applicant as to what was his complaint about his own “section 20 letter”, it is not possible for the Court to understand what in fact are the applicant’s complaints about the decision of the Migration Review Tribunal.
Mr Markus submitted that, in any event, the applicant is estopped from raising at all the issue as to the validity of the “section 20 letter” because that issue had been the subject of a decision by Driver FM in Kumar v Minister for Immigration & Anor [2010] FMCA 614.
Driver FM’s reasons for judgment make clear that the validity of the s.20 letter was squarely raised at the hearing before him at [25] as follows:
“During the course of argument I raised with the parties two additional issues. The first was the assertion made by the solicitors representing the applicant before the Tribunal that the s.20 notice was invalid because the applicant had changed educational institutions by the time the notice was issued and he was no longer an “accepted student” at the education provider. The applicant responded that he did not think his decision to change education providers was a relevant one. His concern relates to his personal circumstances due to the illness of his father. The Minister submits that the assertion by the solicitors was misguided because Mr Kumar did not cancel his enrolment at Meridian College.”
That issue, whilst not a ground of the initiating application, was plainly raised before Driver FM, and his Honour gave some detailed consideration to the argument. Ultimately, Driver FM concluded that the Tribunal was correct in finding that a valid notice under s.20 of the Education Services for Overseas Student Act 2000 (Cth) is not a condition precedent to the exercise of power under s.116 of the Migration Act1958 (Cth).
Driver FM’s finding was not the subject of any appeal or challenge by the applicant. In the circumstances, I am satisfied that the applicant is now estopped from raising that issue before this Court as a ground of review by asserting that the decision of the Tribunal, dated 19 May 2011, is affected by jurisdictional error because the Tribunal failed to hold that the “section 20 letter” was not valid.
The decision being considered by Driver FM was in respect of a decision of a differently constituted Migration Review Tribunal, which, for other reasons, his Honour found to be affected by jurisdictional error, and for that reason, the matter was remitted to the Tribunal for decision according to law. It is that second Tribunal decision that is the subject of judicial review before this Court. As stated above, the only ground raised by the applicant is that the “section 20 letter is not valid”.
As stated above, the applicant is estopped from raising that issue before this Court. There has been no other ground of complaint raised by the applicant, despite being invited to identify whatever complaints he wished in respect of the Tribunal’s decision.
In the circumstances, I am satisfied that the applicant’s proceeding before this Court, seeking judicial review of the Tribunal’s decision, has no, or no reasonable, prospects of success.
Accordingly, even if the applicant’s explanation for his delay was satisfactory, which it was not, there would be no utility in the Court setting aside the Orders made on 31 May 2011.
The Application in a Case, filed by the applicant on 27 January 2012, should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 28 March 2012
0
1
3