Mandava v Minister for Immigration and Border Protection

[2014] FCA 1198

FEDERAL COURT OF AUSTRALIA

Mandava v Minister for Immigration and Border Protection [2014] FCA 1198

Citation:	Mandava v Minister for Immigration and Border Protection [2014] FCA 1198
Appeal from:	Mandava v Minister for Immigration & Anor [2014] FCCA 1363
Parties:	MAHESH MANDAVA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	VID 351 of 2014
Judge:	MURPHY J
Date of judgment:	7 November 2014
Legislation:	Federal Court of Australia Act 1976 s 25(2B)(bb) Federal Court Rules 2011 (Cth) r 36.75 Migration Regulations 1994 (Cth)
Cases cited:	Mandava v Minister for Immigration & Anor [2014] FCCA 1363
Date of hearing:	7 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Mr J Hutton of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 351 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MAHESH MANDAVA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	7 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 351 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MAHESH MANDAVA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MURPHY J
DATE:	7 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT (revised from transcript)

INTRODUCTION

1. In this matter the appellant appeals from a decision of the Federal Circuit Court dismissing his application for judicial review in relation to a decision of the second respondent, the Migration Review Tribunal (“Tribunal”) (Mandava v Minister for Immigration & Anor [2014] FCCA 1363).

2. The application to the Federal Circuit Court sought review of a decision of the Tribunal on 17 September 2013 to affirm a decision of the Minister for Immigration and Border Protection’s (“Minister”) delegate (“delegate”) on 15 February 2012 refusing to grant the appellant a Student (Temporary) (Class TU) visa (“the visa”).

   THE APPELLANT’S NON-APPEARANCE

3. The appellant’s notice of appeal states that the time and date for hearing will be advised by the Registry.  The hearing before the Court was then scheduled for 7 November 2014 at 10:15 am.  The appellant was so advised by letter dated 9 September 2014 from the National Appeals Registrar addressed to him at the address he supplied to the Court.  The Court file indicates that this letter was not returned.

4. The appellant did not file his submissions in accordance with the directions made on 14 August 2014.  My chambers left telephone messages for the appellant with regard to his submissions and sent him an email on 31 October 2014 to the email address he supplied to the Court requesting compliance with the directions, but did not receive a response.  On the afternoon of 6 November 2014 my chambers telephoned the appellant and spoke to him advising him that the appeal would be heard at 9.15 am the following day.  The appellant indicated that the earlier time was not a difficulty for him and he stated that he would appear.

5. The matter came on for hearing as scheduled today at 9.15 am.  There was no appearance by the appellant when the matter was called for hearing inside and outside the Court.  I stood the matter down until 9.45 am but the appellant had still not appeared.  In the interim my chambers telephoned the appellant and left an urgent telephone message for him but he did not respond.  I stood the matter down until 10.15 am but the appellant still did not appear when the matter was called inside and outside the Court.

6. In reliance on the non-appearance of the appellant, the Minister applies to dismiss the application pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”). Rule 36.75 relevantly provides:

   (1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

   (a)       if the absent party is the appellant:

   (i)        the appeal be dismissed;

   …

7. Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (“FCA”) also enables dismissal of an appeal when the appellant fails to appear. It relevantly provides:

   A single Judge (sitting in Chambers or in open court) or a Full Court may:
   (bb)     make an order that an appeal to the Court be dismissed for:
   …

   (ii)       failure of the appellant to attend a hearing relating to the appeal.

8. Given the appellant’s non-appearance I dismiss the appeal pursuant to s 25(2B)(bb)(ii) of the FCA and under the Rules. I have had regard to s 37M of the FCA which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. To adjourn the matter because of the appellant’s non-appearance would not have met the requirements of s 37M, even more so when the matter is an appeal against the finding of another court. The finality of court decisions is an important aim of the judicial system.

9. I am reinforced in my view that it is appropriate to dismiss the appeal when, on my review of the papers, it appears that the appeal has little prospect of success.  The notice of appeal, so far as the grounds can be understood, seems to provide that:

   the appellant has “exceptional circumstances” which appear to relate to previous health issues;

   a new argument has come to light which demonstrates that his unsatisfactory progress in attending a course of study “wasn’t in his control”, and appears to relate to a letter which he was not allowed to put before the Federal Circuit Court; and

   the Court “hasn’t even looked at the [appellant’s] claims as there was a big barrier”.

   The notice of appeal does not identify any legal, factual or discretionary error in the Federal Circuit Court decision.

10. As the Minister contends, it appears that the claim of exceptional circumstances misconceives the issues that were before the Tribunal, then the Federal Circuit Court and ultimately this Court.  While the appellant’s circumstances and health may have had some relevance for the decision made by the delegate, by the time the matter had come before the Tribunal the issues for the decision-maker had changed.

11. By that time it appears that the appellant was no longer enrolled in a course of study. As the appellant had applied for a Student (Temporary) Visa, the relevant sub-class of visa was to be determined by the course in which the appellant was enrolled. As the Tribunal correctly identified, with limited exceptions which were not relevant, cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) required that the appellant be enrolled in or be the subject of a current offer of enrolment in a course of study that is “a principal course” and of a type that was specified for the relevant sub-class of visa by the Minister.

12. There was no evidence before the Tribunal that the appellant was enrolled in, or had a current offer of enrolment in, any course of study at the time the Tribunal made its decision.  The appellant did not challenge this finding in his appeal to the Federal Circuit Court or in the appeal to this Court.  The enrolment requirements are not discretionary and do not require the decision-maker to make a subjective decision.  Either the appellant was enrolled or had a current offer of enrolment in a relevant course of study, or he did not.  He put on no evidence that he did.

13. In the circumstances the appeal is dismissed and I order the appellant to pay the first respondent’s costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: 

Dated:        7 November 2014