Nandyala v Minister for Immigration

[2016] FCCA 967

FEDERAL CIRCUIT COURT OF AUSTRALIA

NANDYALA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 967

Catchwords:
MIGRATION – Medical treatment visa – review of Migration Review Tribunal (“Tribunal”) decision.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.362B, 474

Migration Regulations 1994, cls.602.212, 602.213 of sch.2, criterion 3001 of sch.3
Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Cases Cited:
Nandyala v Minister for Immigration & Anor [2015] FCCA 840
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: KISHORE NANDYALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 596 of 2015

Judgment of: Judge Cameron

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms H. Musgrove of Sparke Helmore

ORDERS

1. Pursuant to rule 13.03C(1)(e) of the Court’s Rules, the applicant’s application in a case filed on 24 February 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $450.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 596 of 2015

KISHORE NANDYALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The following recitation of facts concerning the applicant’s visa application is drawn from the affidavit filed by the applicant on 10 March 2015, in particular the decision of the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, dated 19 February 2015 which is annexed to that affidavit. 

2. On 29 December 2014 the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) subclass 602 visa with the Department of Immigration and Border Protection. The applicant’s last substantive visa prior to his application was a temporary visa which had ceased to be in effect on 15 March 2011. On 31 December 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.602.213 of sch.2 to the Migration Regulations 1994 (“Regulations”) because his application had been made more than twenty-eight days after his last substantive visa had ceased to be in effect. The applicant then applied to the Tribunal for a review of that departmental decision and on 19 February 2015 the Tribunal affirmed the decision of the delegate to not grant him a visa.

3. The applicant commenced proceedings in this Court on 10 March 2015 by filing an application seeking judicial review of the Tribunal’s decision.  The applicant’s application was listed for its first court date on 2 April 2015.  The applicant did not appear in court on that date and in his absence Judge Street summarily dismissed his application on the basis that it had no reasonable prospects of success: Nandyala v Minister for Immigration & Anor [2015] FCCA 840. The applicant then appealed to the Federal Court. By consent orders made on 19 October 2015 the matter was remitted to this Court.

4. On 20 October 2015 the Court’s registry sent the applicant an email advising him that the matter had been listed for directions before a registrar on 26 November 2015. The email indicates that the registry officer who sent the email also spoke to the applicant, presumably by telephone, and advised him of the listing of the matter before the registrar. The applicant did not appear in court on 26 November 2015 and the proceedings were dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

5. On 30 December 2015 the applicant filed an application in a case under r.16.05 of the Rules, implicitly seeking to set aside the orders made by the registrar on 26 November 2015 on the basis that those orders had been made in his absence. On 12 January 2016 an officer in the Court’s registry sent an email to the applicant and a letter to his address for service advising him that his application in a case had been listed for directions before on 28 January 2016. The applicant failed to appear in court on that occasion too and his application was again dismissed pursuant to r.13.03C(1)(c) of the Rules.

6. These reasons concern a further application in a case which was filed by the applicant on 24 February 2016 seeking to set aside the orders made on 28 January 2016.  This matter was listed for hearing this morning at 9:30 am.  At that time there was no appearance by or for the applicant.  In the event that he was merely running late, the matter was stood down for fifteen minutes to 9:45am.  At 9:45am the matter was called again and once more there was no appearance by or for the applicant. 

7. During the adjournment Ms Musgrove, who appears for the Minister today, made inquiries, she has told me, of her office and was advised that the applicant had not made contact there this morning.  The matter was also called on the ground floor of this building, on level 9 and on level 13 where the Court also sits.  We are presently sitting in court 8.3 on level 8 of the Terrace Tower Building at 80 William Street, Sydney. 

8. In circumstances where the applicant has failed to attend court on a third occasion, the Minister has requested the Court to proceed to hear the application in a case and to determine it. There is power under r.13.03C(1)(e) of the Court’s Rules to do this. I think, given the applicant’s persistent failure to attend court when his matter is listed, that it is appropriate to accede to the Minister’s request.

9. In my view the considerations which are relevant to the decision whether to grant the present application in a case are whether the applicant’s explanation for his non-attendance on 28 January 2016 is a satisfactory one and whether, nevertheless, his case on the principal application has reasonable prospects of success.  

Satisfactory explanation

1. Turning first to whether the applicant has provided a satisfactory explanation for his non-attendance on the last occasion, in an affidavit filed in support of his application in a case the applicant deposed that he had not received any communication from the Court or the Minister until he received notification that his matter had been dismissed.

2. I am hesitant to reject the applicant’s evidence in his absence and without him having the opportunity to address my concerns about it but it must be observed that the Court’s file indicates that on 12 January 2016 the applicant was advised by email at his email address identified in his initiating application, as well as in his most recent application in a case, as an email address for service that the matter was listed for directions at 2:15pm on 28 January 2016. 

3. The Court file also indicates that on 12 January 2016 the registry wrote to the applicant at his street address for service in Parramatta advising him that the matter was listed at 2:15pm on 28 January 2016.  Given that the Court’s file indicates that the applicant was advised of the January directions date by both email and post, I do not accept that he was not aware of it because he did not receive notification of the listing. 

4. In the event that there is any concern regarding the email notification to the applicant on 12 January 2016, I should record that at 9:16am on that day an email was sent to Ms Musgrove as well as to an email address which was presumably intended to be the applicant’s email address.  However, it was not the correct email address.  At 9:32am, the Court sent a further email to the applicant at the correct email address. 

5. In the circumstances I am not persuaded that the applicant has provided a satisfactory explanation for his non-attendance on the last occasion. 

Reasonable prospects of success

1. In any event, the application to reinstate the proceeding would not be granted unless the applicant demonstrated that his case for judicial review had reasonable prospects of success. In that regard, it should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant seeking the relief which the present applicant seeks will not make out his or her case unless he or she can demonstrate reasonable prospects of proving in the substantive proceedings that the Tribunal’s decision is affected by jurisdictional error.

Relevant legislation

1. The criteria for the grant of a subclass 602 visa are set out in pt.602 of sch.2 to the Regulations. One of the primary criteria which the applicant had to satisfy at the time he made his application was cl.602.213 which relevantly provided:

   (3)     Subclauses (4) and (5) apply if:

   (a)the applicant was in Australia at the time of application; and

   (b)the applicant did not hold a substantive temporary visa at that time; and

   (c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.

   (4)The last substantive temporary visa held by the applicant was not:

   (a)a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

   (5)The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

2. Clause 602.212(6) related to persons medically unfit to depart Australia and it has not been suggested that it applied to the applicant.

3. Of the sch.3 criteria which applied to the applicant’s application, criterion 3001 is presently material.  It relevantly provided:

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause(1) … the relevant day, in relation to an applicant, is:

   …

   (c) if the applicant:

   (i)     ceased to hold a substantive … visa on or after 1 September 1994; …

   …

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive … visa;

   …

The Tribunal’s decisions and reasons

1. On 20 January 2015 the Tribunal wrote to the applicant inviting him to give oral evidence and to present arguments at a hearing on 17 February 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. The applicant had also been sent reminders of the hearing date by SMS to his mobile phone on 10 February 2015 and 16 February 2015. In those circumstances, and pursuant to s.362B of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. The Tribunal affirmed the delegate’s decision to refuse the applicant a medical treatment visa. It found on the material before it that the applicant’s last held substantive visa had been a temporary visa which had been valid until 15 March 2011. The Tribunal also noted that the applicant had made his application for a medical treatment visa on 29 December 2014. In those circumstances, the Tribunal found that the applicant’s application had not been made within twenty-eight days after his last substantive visa ceased to be in effect. It therefore found that the applicant did not satisfy criterion 3001 and consequently did not satisfy cl.602.213 of sch.2 to the Regulations.

Proceedings in this Court

1. The applicant made no allegations in the application which initiated the proceedings.  However, in his affidavit filed with the originating application the applicant alleged:

   1.I applied for Subclass 602 visa (Medical Treatment Visa) on 29 Dec 2014 to Minister for Immigration and Citizenship which was refused by the department on 31 December 2015.

   2.I applied for review of such decision to Migration Review Tribunal.

   3.Migration Review Tribunal had refused to my review application on 19^th February 2015. ...

   4.Migration Review Tribunal had made error while considering my application and making decision.  I believe that MRT has not acted in best interest of the applicant (myself) and so I would like to have review of my application made to MRT be reviewed again properly and fairly by relevant authority.

2. The matters raised by the applicant in his affidavit do not disclose any arguable case of jurisdictional error on the Tribunal’s part.  The closest they get to such an allegation is the assertion that the Tribunal did not act in the best interests of the applicant.  However, the Tribunal’s principal duty was to consider whether the applicant met the criteria for the grant of the visa he sought.  Its duty to the applicant was limited to matters of natural justice and the applicant has not suggested any failure to discharge that duty. 

Conclusion

1. The applicant has not provided a satisfactory explanation for his failure to attend court on the last occasion and his initiating application and supporting affidavit do not disclose an arguable case, let alone one which has reasonable prospects of success.  In such circumstances, the application in a case filed on 24 February 2016 will be dismissed.  

Costs

1. As the application is to be dismissed, the Minister has sought an order for his costs.  It is appropriate that costs follow the event of this matter. The Minister seeks an amount of $450 for his costs which, in my view, is a very reasonable amount. 

Orders

1. Consequently, the orders today will be that pursuant to r.13.03C(1)(e), the application be dismissed. Secondly, the applicant pay the first respondent’s costs fixed in the amount of $450. Finally, there will be a further order that the Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in this proceeding.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 27 April 2016