Kumar v Minister for Immigration & Border Protection

[2015] FCCA 1358

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1358

Catchwords:

MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – whether application should be dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12
Migration Regulations 1994 (Cth)

Applicant: SUMIT KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3189 of 2014

Judgment of: Judge Emmett

Hearing date: 22 May 2015

Date of Last Submission: 22 May 2015

Delivered at: Sydney

Delivered on: 22 May 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Stephen Spiers (Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3189 of 2014

SUMIT KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceedings before this Court be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”) on the basis of the failure of the applicant to appear at today’s scheduled hearing.

2. In support, the first respondent tendered a letter dated 19 May 2015 from the first respondent’s solicitor to the applicant at the address identified by the applicant on his originating application as his address for service in Australia. That letter is marked Exhibit 1R.

3. Exhibit 1R enclosed by way of service upon the applicant the first respondent’s outline of submissions, and informed the applicant that, in the event that he did not attend the hearing, the first respondent would seek to have his matter dismissed with costs. Exhibit 1R also provided for the applicant's benefit the time, date, and location of the hearing of this matter.

4. The matter was set down pursuant to directions made by a Registrar of this Court on 12 March 2015. At that directions hearing, the applicant was given leave to file and serve an Amended Application, further evidence, and submissions in support of his application. The matter was set down for a show cause hearing pursuant to r.44.12 of the Rules today at 9.30am before me.

5. It is now 10.43am. The matter has been called on at least two occasions this morning, most recently less than five minutes ago. There has been no communication received by the Court or the first respondent from the applicant either seeking an adjournment of today’s hearing or for any other reason. I also note that there has been no document filed by or on behalf of the applicant, either in accordance with the directions made by the Court on the 12 March 2015, or otherwise.

6. In considering whether to exercise the Court’s discretion to dismiss the matter, I also have regard to the grounds identified in the originating application. Those grounds stating no more than:

   “Review the MRT (decision) letter attached.”

7. There has been no letter attached or provided by the applicant in further particulars of that allegation.

8. The applicant also filed an affidavit on the 17 November 2014 in support of his application, annexing a decision of the Migration Review Tribunal (“the MRT”). That decision makes clear that the applicant was invited to attend a hearing before the MRT, and for whatever reason chose not to do so.

9. The MRT noted that the applicant did not reply to the hearing invitation, did not return any calls or attend the hearing. Ultimately, the MRT was not satisfied on the evidence and material before it that the applicant met the relevant criteria for the visa for which he applied. The MRT identified the issue before it as follows:

   “7. The issue in the present matter is whether the applicant can satisfy the financial capacity requirements for the grant of the visa. The Tribunal wrote to the applicant asking him to provide documents and information to demonstrate that he could satisfy those requirements. He was invited to attend a hearing to discuss the matter. The applicant did not submit the documents/information requested and he did not attend the hearing. The Tribunal is satisfied that the applicant has had sufficient time and opportunity to provide the evidence required.”

10. The MRT noted that it had no information on which it could be satisfied that the applicant could meet the financial capacity requirements of Schedule 5A to the Migration Regulations 1994 (Cth) for the purposes of the relevant clause, being a mandatory criteria for the granting of the visa.

11. Whilst I make no final decision as to whether or not the MRT’s decision record is affected by jurisdictional error, none is apparent on the face of the MRT’s decision record and none has been identified by the applicant.

12. In the circumstances, I am satisfied that the orders sought by the first respondent is appropriate, and accordingly the proceeding before this Court, commenced by way of application filed on 17 November 2014, is dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:         2 June 2015