Kumar v Minister for Immigration and Border Protection
[2014] FCA 819
•4 August 2014
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2014] FCA 819
Citation: Kumar v Minister for Immigration and Border Protection [2014] FCA 819 Appeal from: Kumar v Minister for Immigration and Border Protection [2014] FCCA 865 Parties: NAVEEN KUMAR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: SAD 60 of 2014 Judge: WHITE J Date of judgment: 4 August 2014 Catchwords: MIGRATION – appeal against dismissal of judicial review application from MRT decision – MRT having refused application for Skilled Graduate (Temporary) Class VC (Subclass 485) visa – applicant absent from hearing – dismissal of appeal in applicant’s absence pursuant to Federal Court Rules 2011 r 36.75
PRACTICE AND PROCEDURE – interlocutory application for adjournment of hearing on medical grounds – application made late – applicant with history of absences on claimed medical grounds – insufficient evidence to support applicant’s inability to attend – application for adjournment dismissed in applicant’s absenceLegislation: Federal Court Rules 2011 r 36.75
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2 cl 485.215Date of hearing: 4 August 2014 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr R Prince Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 60 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: NAVEEN KUMAR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
4 AUGUST 2014
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the first respondent’s costs fixed in the sum of $2,178.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 60 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: NAVEEN KUMAR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE:
4 AUGUST 2014
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The Court was to hear this morning an appeal by the appellant against a decision of a judge of the Federal Circuit Court of Australia (the FCC) dismissing his application for review of a decision of the Migration Review Tribunal (the MRT) made on 26 June 2013. The FCC made that decision on an application under s 476 of the Migration Act 1958 (Cth).
The appellant has not appeared today. However, he did file an interlocutory application on Friday, 1 August 2014 in which he sought an adjournment of the hearing. The Minister, who is the first respondent, opposes an adjournment and, in view of the appellant’s non-attendance, seeks the summary dismissal of the appeal.
On 2 October 2011, the appellant applied for a Skilled Graduate (Temporary) Class VC (Subclass 485) visa.
On 23 July 2012, the Minister’s delegate refused that application on the ground that the appellant had not satisfied the English language competence criterion specified in Sch 2 cl 485.215 of the Migration Regulations 1994 (Cth). That criterion required either that the appellant be the holder of a passport from a specified country, or have achieved a specified score in one or other of two English tests. The appellant did not hold a passport of the specified kind and there is no evidence that he had achieved the requisite score in either of the two stipulated English tests in the two year period preceding his visa application. On the contrary, the appellant acknowledged in his visa application that he had not undertaken an English test within the preceding 24 months.
The appellant then applied to the MRT for review of the decision of the Minister’s delegate. On 16 May 2013, the MRT invited the appellant to appear before it on 19 June 2013 at 2.00pm to give evidence and to present arguments in support of his application. At the same time, the MRT drew the appellant’s attention to the English competence criterion, to the evidence required to establish that criterion, and to the fact that his visa application had been refused by the Minister’s delegate because that delegate had not been satisfied that he did have competent English. The MRT informed the appellant that if he did have evidence of competency in English, he should provide it as soon as possible.
The appellant did not respond to the MRT letter of 16 May 2013. Nor did he attend the hearing on 19 June or provide the MRT with any explanation for his failure to do so. The MRT was entitled in that circumstance to make a decision on the review without taking any further action to allow him to appear before it. By a decision on 26 June 2013, the MRT found that the appellant did not satisfy the English competence criterion and affirmed the delegate’s decision not to grant a visa.
Then on 18 July 2013, the appellant filed an application in the FCC under s 476 of the Migration Act, stating the following ground:
I am not satisfied with the decision made by Migration Tribunal Review. I was so sick and could not attend the date even though I have all the documents to support my case.
I have medical certificates that I was so sick. They made decision without me, so I want to provide documents for my case.
In the accompanying affidavit, the appellant deposed:
I was sick and could not attend the Court date which I had doctor certificate of. The decision was made when I was not there. I have all the documents to support my case on me.
The appellant was informed on 17 February 2014 that the FCC would hear his application on 6 March 2014 at 3.30pm. Shortly after 1.00pm on 6 March, the FCC Registry received a telephone call from the appellant in which he indicated that he was unwell, would not be able to attend court and would be going to “the doctor” that afternoon. It is not altogether clear what then transpired, but the hearing before the FCC Judge proceeded at 3.30pm that same day. The applicant participated by telephone. The means by which that came about are not apparent.
In an ex tempore judgment delivered after hearing submissions, the FCC Judge dismissed the application: Kumar v Minister for Immigration and Border Protection [2014] FCCA 865. The Judge was satisfied that the appellant had had proper notice of the hearing before the MRT on 19 June 2013 and that, despite his non-appearance that day, it had been open and reasonable for the MRT to make the decision on review without taking further action to allow or to enable him to appear. It is apparent that the FCC Judge was satisfied that there had been no denial of procedural fairness or other breach of the statutory requirements of the Migration Act by the MRT having proceeded in the appellant’s absence.
The appellant’s notice of appeal to this Court contains the following ground:
I wish to further apply my case to Federal Circuit Court of Australia because I had my hearing with previous Judge on phone and it was quite difficult for me to explain my opinions and defend my claims. I never had such hearing on phone that made me extremely nervous. In addition I could not understand the Honourable Judge at few times and I thought I responded [to] his [sic] questions in different manner which had affected the outcome significantly in opinion. I thereby request the Court to accept my application for further hearing and provide justice to my case as I have all the required documents and I have many points to submit in front [of] the Honourable Judge to prove my claims.
That ground seems to raise an issue about the manner in which the hearing in the FCC had proceeded and, in particular, as to whether the appellant had been able to present his case adequately given that his participation was by telephone.
The appellant also asserts that he has “all the required documents” with which to make out his case. I note that despite that assertion and despite the opportunities which the appellant has had in the past, he has not provided evidence of satisfaction of the English competence criterion to the Minister’s delegate, to the MRT, to the FCC or, for that matter, to this Court in relation to this appeal. That is despite the FCC Judge having held at [14] of her reasons that the application for a visa was doomed to fail in any event because of his non-compliance with the mandatory requirement to satisfy the English competence criterion.
It was initially contemplated that this appeal would be heard in the May appeal sessions. However, that could not occur. On 29 April 2014, the appellant was informed that his appeal would be heard in the period between 4 and 26 August 2014 and that the Court would notify him of the date on which it would actually be heard.
The notification of today’s listing was given to the appellant on 30 May 2014. The appellant’s attention was drawn, on that date, to the directions given by the Registrar on 29 April 2014 concerning the preparation and filing of written submissions and the appeal book. The appellant was provided with copies of the documents relating to the time at which a written outline of his submissions should be provided.
The Court has not received any written submissions from the appellant at all. Instead, the Court has received an application by the appellant for an adjournment of the hearing.
The first notification that the Court had that the adjournment would be sought was on Thursday, 31 July 2014, at about 10.30am. The appellant telephoned the Registry. He informed a Registry officer that he had been in an accident, that he had suffered injuries, including post-traumatic stress disorder, and that he wished today’s hearing be adjourned. The Registry officer informed the appellant that he should contact the respondent and inquire whether the Minister would consent to an adjournment in those circumstances, and then inform the Registry of the outcome.
It is apparent that the appellant acted on that suggestion, as he telephoned the office of the Australian Government Solicitor (AGS). In a telephone conversation at 11.47am on 31 July, the appellant said to Ms Deegan, a solicitor at the AGS, words to the following effect:
I am unable to attend the hearing on Monday as I was in a car accident and am suffering from a shoulder injury and post-traumatic stress disorder. I have a letter from my psychologist that I want to submit.
Ms Deegan informed the appellant as follows:
The Minister does not consent to an adjournment and thinks that the hearing should proceed on Monday. You should therefore attend the hearing and if you are not able to attend you should file an interlocutory application with the court seeking an adjournment along with any supporting documents that you want to submit.
Ms Deegan confirmed the content of that conversation in an email which she sent to the appellant at about 12.00pm on 31 July.
In an email from my associate to the appellant, at 4.45pm on 31 July, the appellant was informed of the receipt of the affidavit from Ms Deegan deposing to the matters which I have just mentioned, and indicating that the Court was not prepared to grant an adjournment of the hearing at that stage. My associate’s email continued:
If you wish to pursue an adjournment, it will be necessary for you to attend the hearing on Monday 4 August to make the application. In addition, it will be necessary for you to establish proper grounds for an adjournment. Establishing proper grounds can be done by affidavit or affidavits deposing to the matters on which you rely and exhibiting all of the documents which confirm the assertions which you make in the affidavit, eg proof of the accident in which you were involved, of the injuries which you assert you suffered in the accident and of any limitations on your ability to present your appeal. This affidavit should be filed and served on the AGS as soon as practicable.
As I have said, it is still necessary for you to attend the hearing on Monday 4 August.
On the following day, 1 August, the applicant filed the interlocutory application. It indicated that he sought another date for the hearing because of a car accident and because of his inability to prepare for his case. The applicant deposed in the supporting affidavit that he needed an adjournment because of a car accident, and that he would be providing medical certificates from a doctor and a psychologist. The affidavit indicated that he was being treated for post-traumatic stress disorder by a psychologist. The affidavit concluded:
Hopefully these documents will help to tell you that I have been going [through] a bad time, and been on treatment for a few months.
The appellant exhibited to his affidavit a copy of an insurance company claim form relating to a car accident on 1 May 2014, a certificate of sickness from Dr Kerry, dated 1 August 2014, and invoices or receipts from a psychologist relating to various attendances of the appellant on the psychologist. By his certificate of 1 August 2014, Dr Kerry certified that he had examined the appellant on 1 August 2014, that he considered him to be suffering from “painful left shoulder”, and that he would be unfit for work for the period 1 August 2014 to 14 August 2014. The appellant’s occupation has been that of taxi driver, and so Dr Kerry’s certificate can be understood as an indication that the appellant was unfit, by reason of the condition of his left shoulder, for the work of taxi driving. It is pertinent that Dr Kerry makes no mention of any psychological condition such as that of post-traumatic stress disorder and that he does not certify as to any inability of the appellant to participate in today’s hearing, let alone to attend to make the adjournment application.
The appellant attended personally at this Court’s Registry to file the documents on 1 August 2014. The Registry officer who attended him at that time reminded him that it would still be necessary for him to attend this morning. Thus, the appellant has been informed on at least three occasions of the necessity for him to attend at this morning’s hearing; twice by my associate, and by a Registry officer.
Despite that, the appellant has not attended this morning. No explanation for his failure to do so has been provided, other than that which can be inferred from the interlocutory application filed on Friday, 1 August.
In these circumstances, the first question to be determined is whether the Court should adjourn the hearing. There are unsatisfactory aspects to the application. First, it has been made very late with the first intimation that the application for the adjournment would be made being received by the Court and by the AGS only on Thursday, 31 July 2014. This was well after the appellant was notified of today’s listing and well after the time for provision by the appellant of his outline of submissions. It was also after receipt of the Minister’s outline of submissions.
Secondly, the lateness of the application is to be assessed against the circumstance that the appellant has not attended two previous hearings, namely the hearings in the MRT and in the FCC. On the second of those occasions, the appellant gave late notice of being unwell but did not provide to the FCC any evidence of his ill-health. Even if, by reason of his participation by telephone it was difficult for the appellant to provide that evidence at that time, he has not provided it since, either to the FCC or to this Court. The appellant has not provided any evidence at all of ill-health inhibiting his ability to attend and participate in the hearing before the MRT on 19 June 2013.
Next, it may well be the case that, as Dr Kerry has certified, the applicant has pain and discomfort resulting from an injury to his left shoulder. It does not follow, however, that such pain or discomfort would prevent the appellant from attending here today to make the application for the adjournment. It is evident that the applicant has mobility as is indicated by the circumstance that he attended this Court on Friday, 1 August 2014, attended Dr Kerry’s surgery on 1 August 2014 and attends, from time to time, the rooms of a psychologist.
This Court is solicitous to litigants who are genuinely unable to participate in a scheduled court hearing because of ill-health or injury. Courts generally try to accommodate those circumstances. However, a proper basis for the Court’s consideration in that respect must be shown, having regard to the prejudice which an adjournment may cause to the other parties and to the public interest in the proper administration of justice.
Having regard to the matters which I have outlined, I am not satisfied that such a proper basis has been shown in this case. There is evidence that the appellant may suffer from a painful left shoulder but there is no evidence that the limitations which that condition imposes have prevented him from being present today. It was not open to the appellant to assume that his application for an adjournment would be granted or, by his absence, to seek to force the hand of the Court to grant an adjournment.
The circumstance that the appellant has not been here has meant that the Court has not been able to make further inquiries of him which may have elicited a proper basis on which an adjournment could be granted.
I am concerned by the lateness of the application and by the lack of cogent evidence to support it. It is significant, in my opinion, that Dr Kerry, although certifying to incapacity for work, has not certified that the appellant is, or would be, unable to participate in this hearing.
The need for cogent evidence in this case is underlined, in my opinion, by the circumstance that this is the third tribunal or court hearing at which the appellant has not attended and in respect of which he has asserted an inability to do so by reason of ill-health.
Accordingly, I refuse the adjournment.
Mr Prince, for the Minister, has applied in that circumstance for the appeal to be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). That rule permits the Court to dismiss an appeal when an appellant is absent when the appeal is called on for hearing. Those circumstances are satisfied in the present case. I add that, in addition to the appellant not answering the Court officer’s call, enquiries of the Court Registry and of the Court security desk indicate that the appellant has not been present and has not communicated to the Court in relation to his non-attendance today.
Naturally, the Court is concerned at the prejudice that a dismissal pursuant to r 36.75 might cause in circumstances such as the present. However, there is no basis disclosed to the Court at present on which a finding of some real prejudice might be made. That is because the appellant has still not provided any evidence that he can satisfy the English competence criterion.
As I said earlier, the appellant acknowledged himself in his application for a visa that he had not undertaken any examination in English in the two years preceding his application. Although the reason for his visa application being unsuccessful has been pointed out to him repeatedly, he has not provided evidence that he can establish the English language competence criterion, and it seems that he is unable to do so.
Accordingly, I am satisfied that this is a case in which it is appropriate to make an order under r 36.75. The order of the Court is that the appeal be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 8 August 2014
0