Namilakonda v Minister for Immigration and Border Protection
[2017] FCA 987
•22 August 2017
FEDERAL COURT OF AUSTRALIA
Namilakonda v Minister for Immigration and Border Protection [2017] FCA 987
Appeal from: Namilakonda v Minister for Immigration [2016] FCCA 2931 File number: VID 1303 of 2016 Judge: ROBERTSON J Date of judgment: 22 August 2017 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – whether any error by the primary judge in concluding that there was no jurisdictional error by the then Migration Review Tribunal in not being satisfied that the applicant intended genuinely to stay in Australia temporarily for the purposes of cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) as then in force – no appearance by the appellant at the hearing of the appeal Legislation: Migration Act 1958 (Cth) s 65
Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Migration Regulations 1994 (Cth) Sch 2, cl 572.223
Date of hearing: 22 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Mr O Young of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
VID 1303 of 2016 BETWEEN: DEVARAJU NAMILAKONDA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
22 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, as agreed or as taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
On the papers as filed, the issue in this appeal is whether the judge of the Federal Circuit Court of Australia (the primary judge) made any appellable error in dismissing, with costs, the application filed in that Court on 13 June 2014 for judicial review of a decision of the then Migration Review Tribunal (the Tribunal). In the circumstances I mention more fully below, at the hearing of the appeal today the appellant did not appear.
The Tribunal, on 16 May 2014, affirmed the decision not to grant the present appellant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth).
According to findings of fact made by the Tribunal, the appellant arrived in Australia on 23 May 2009 as the holder of a subclass 572 student visa current until 25 August 2011. He was subsequently granted a further subclass 572 visa current to 3 May 2013. On that date he applied for a further subclass 572 visa, listing his intended studies as an Advanced Diploma of Management.
A central factual matter on which the decision of the Tribunal turned was a study gap between 6 August 2011 and 16 July 2012 which, the Tribunal found, the appellant’s evidence did not adequately explain. The Tribunal said that the appellant’s study history, including his study pattern and choice of courses, led the Tribunal to have grave concerns about whether the appellant was a genuine applicant for entry and stay as a student or whether this history indicated he was using the student migration program to achieve residence in Australia.
The grounds of appeal in the appellant’s notice of appeal to this Court, dated 3 November 2016, were as follows:
1.The learned judge dismissed the appellant’s application filed in the Federal Circuit Court under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) seeking relief in the form of constitutional writs against the decision of the then Migration Review Tribunal (MRT), now Administrative Appeals Tribunal, dated 20 May 2014 where the MRT affirmed the decision by a delegate of the first respondent not to grant the appellant a Student (Temporary) (Class TU) Subclass 572 visa.
2.It had been argued before the Federal Circuit Court that the MRT’s decision involved jurisdictional error in that it had ignored relevant material and relied upon irrelevant material, in such a way that the then MRT’s exercise or purported exercise of power was thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to it under the Migration Act 1958.
3.The Federal Circuit Court erred in dismissing the applicant’s application filed on 30 June 2014 as it failed to take account of relevant considerations and took account of irrelevant considerations.
The application before the Federal Circuit Court was in different but equally non-specific terms. Those grounds were as follows:
1.The Tribunal’s decision is affected by jurisdictional error.
2.The Tribunal did not take account of relevant considerations and took account of irrelevant considerations.
3.The Tribunal did not comply with s 424AA of the Migration Act 1958.
The statutory provision at the centre of the proceedings is cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) as in force at the relevant time. That clause provided, as a time of decision criterion:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matters; and
(b) …
The primary judge said that nowhere had the applicant indicated in what way he sought to develop his contentions in respect of any of the grounds before that Court. The primary judge identified the steps that the Tribunal took. At [11], [14], [15] and [16], the primary judge said:
…The Tribunal correctly identified that the requirements of cl.572.223(1) of Sch.2 of the Regulations needed to be satisfied for the applicant to obtain the visa. The Tribunal correctly identified the application of Ministerial Direction 53 and that, while not a checklist, provided a useful guide about the things to which the Tribunal needed to be satisfied in an assessment of whether the visa ought to have been granted in the circumstances of this case.
… the Tribunal did, in fact, have regard to the matters identified in Ministerial Direction 53, especially evidence before it in relation to the applicant’s circumstances, his immigration history and other matters it considered relevant in reaching the conclusion that it was not persuaded that the applicant did not genuinely intend to stay in Australia temporarily.
It seems to me that the applicant was unable to demonstrate the existence of jurisdictional error. To the contrary, the Tribunal made findings that squarely addressed matters open to it. Let me catalogue them –
a)first, the Tribunal took into account the applicant’s circumstances in Australia and, in particular, his enrolment and study history;
b)second, the Tribunal took into account gaps in the applicant’s study and whether he was using the student visa program to maintain ongoing residence;
c)third, the Tribunal took into account the applicant’s statement of purposes and his intended course of study;
d)fourth, the Tribunal took into account the applicant’s career and study progression and the value of the proposed course to his future;
e)fifth, the Tribunal took into account the applicant’s circumstances in his own country; and
f)sixth, the Tribunal took into account the applicant’s intentions to return to India after his studies and the economic incentives available to the applicant in that regard.
All of those matters were open to the Tribunal to take into account. In addition, the Tribunal highlighted to the applicant at the hearing that the issue of whether he was a genuine temporary entrant in Australia as a student was a very significant, if not determinative, issue of the review. The Tribunal gave the applicant an opportunity to produce further information about it, in circumstances where the Tribunal had highlighted the need for the applicant to demonstrate to the Tribunal that the applicant intended to genuinely stay in Australia temporarily.
The primary judge concluded that the Tribunal made no error or jurisdictional error.
The appellant filed no written submissions. He did not appear at the hearing of the appeal. The relevant circumstances unfolded this morning. There was an email from the solicitors for the Minister to the Court, with a copy to the appellant, timed at 8:04AM. The email stated: “We are instructed that the appellant is currently offshore, having departed Australia on 7 November 2016. We intend to file an affidavit attaching evidence of the appellant’s movement records this morning.” There was then an email from the appellant to the Court and to the solicitors for the Minister timed at 9:26AM stating “my reason for not attending the hearing today.… I will not be able to attend this case because I do not have VISA to travel to Melbourne for attending the hearing in the court. I did wait for my VISA from last 6 months, but I did not get my visa thats why I could not attend the hearing today.” That email also requested the Court to “withdraw my hearing”. By email timed at 12:52PM, the solicitors for the Minister notified the Court, with a copy to the appellant, that they would seek to have the appeal dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). The email attached a copy of an affidavit affirmed by Mr Oliver Young, solicitor, employed by the solicitors for the Minister and dated today.
The first respondent, the Minister, who had in his written submissions submitted that the primary judge was correct to find that the decision made by the Tribunal was not affected by jurisdictional error, applied, as foreshadowed by email, under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). The rule provides as follows:
36.75 Absence of party
(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; or
(ii) the hearing be adjourned; or
(iii)the hearing proceed only if specified steps are taken; or
(b) …
(2)If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the hearing.
On the basis of the affidavit of Mr Young, I find that the appellant’s last visa, a bridging visa, was granted on 4 November 2016 and that visa expired on 7 March 2017. The appellant departed Australia on 7 November 2016 and has not returned to this country.
If the appellant’s email this morning at 9:26AM should be read as an application for an adjournment, I refuse that application as it would serve no purpose.
In what follows I summarise the Minister’s written submissions.
The Minister submitted that the grounds of appeal did not establish any appellable error in the decision of the primary judge or jurisdictional error in the decision of the Tribunal.
He submitted the first ground of appeal, which I have set out at [5] above, was not a proper ground and simply recited part of the procedural history of the matter. It did not identify any error in the decision of the primary judge or jurisdictional error in the Tribunal decision and it should be dismissed. I agree.
The Minister submitted that grounds 2 and 3 re-agitated matters raised by grounds 1 and 2 of the application before the primary judge. He submitted that in the absence of particulars those grounds were meaningless, as found by the primary judge at [9]. He submitted that the appellant had still not identified in the grounds of appeal the relevant material that was ignored or the irrelevant material that was relied on by the Tribunal.
The Minister submitted that the primary judge was correct to find that the Tribunal had regard to the matters identified in Ministerial Direction 53, especially evidence in relation to the appellant’s circumstances, immigration history and other matters it considered relevant in reaching its conclusion that it was not persuaded that the appellant genuinely intended to stay in Australia temporarily. Further, the Minister submitted, the primary judge was correct to find that the Tribunal took into account matters that were open to it to take into account and that the appellant was on notice that whether he was a genuine temporary entrant in Australia was an issue on review.
The Minister submitted that the primary judge identified the grounds raised by the appellant in his application, considered those grounds and, having asked the appellant at the hearing before his Honour on 24 October 2016 whether the present appellant wanted to urge any particular proposition of fact or law, considered that further submission. The Minister submitted that there was no error on the part of the primary judge in how his Honour conducted his review of the application and to the extent that the appellant alleged error on the part of the primary judge such a complaint should be dismissed.
The Minister submitted that grounds 2 and 3 disclosed no error on the part of the primary judge, or jurisdictional error on the part of the Tribunal, and should be dismissed.
I agree that Grounds 2 and 3 disclose no error on the part of the primary judge or jurisdictional error on the part of the Tribunal. Plainly, the appellant does not agree with the decision made by the Tribunal or by the primary judge but, without more, that does not establish jurisdictional error on the part of the Tribunal or appellable error on the part of the primary judge.
Conclusion and orders
As I have said, the appellant was absent when the appeal was called on for hearing. I dismiss the appeal under r 36.75(1)(a)(i) of the Federal Court Rules. I also note that the appellant has not established any appellable error on the part of the primary judge. He has not made out any of his grounds of appeal. The order I make is that the appeal be dismissed, with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 22 August 2017
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