NANDYALA v Minister for Immigration

[2015] FCCA 840

FEDERAL CIRCUIT COURT OF AUSTRALIA

NANDYALA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 840

Catchwords:
MIGRATION – Migration Review Tribunal – Medical Treatment (Visitor) (Class UV) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Migration Regulations 1994 cl.602.203

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: KISHORE NANDYALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 596 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

There was no appearance by the applicant

Solicitors for the Respondent: Mr L. Dennis
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay First Respondent’s costs fixed in the sum of $1367.

3. Exhibit A be returned to the First Respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 596 of 2015

KISHORE NANDYALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 19 February 2015, affirming the decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UV) visa. 

2. The matter was listed today at 9.30 am, and the matter has been called outside the Court twice, and it is now 11:50 am and the applicant has not appeared.  The Minister has tendered a letter of notification of the hearing sent by express post to the address on the application filed by the applicant sent on 16 March 2015.  

3. This is an application where the Court, having looked at the application and the reasons, is of the view that the matter should be summarily dismissed. 

4. The grounds of the application say:

   Please see affidavit attached.

5. The affidavit relevantly identifies:

   4. Migration Review Tribunal 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.

6. Paragraph 4 of the affidavit and the application plainly failed to identify any arguable jurisdictional error. 

7. The Tribunal decision identified that an application was made for a review of the decision of the delegate on 31 December 2014, and that the delegate refused to grant the applicant a visa because the applicant did not satisfy cl.602.203 of Schedule 2 to the Migration Regulations 1994 as it was not satisfied the applicant met Schedule 3, criteria 3001. 

8. The Tribunal identified that on 20 January 2015, it wrote to the applicant and invited him to give oral evidence, and to present arguments, at the hearing on 17 February 2015.  The Tribunal noted that the applicant failed to appear, and if a postponement was not granted the Tribunal may make a decision 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 and place that he was scheduled to appear. 

9. The Tribunal sent a hearing reminder by SMS to the applicant on 10 February 2015, and on 16 February 2015.  It was in those circumstances that the Tribunal decided to proceed with the review and make its decision.  The Tribunal was entitled in the circumstances identified to do so.

10. Relevantly, the Tribunal identified:

    6. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.  The issue in this case is whether the applicant meets the requirements of cl.602.213.

    The applicant’s visa status and related requirements

    7. Clause 602.213 applies to applicants who were in Australia at the time the visa application was made.  It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met.  These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

    …

    9. Information on the decision record, which was provided to the Tribunal, indicates that the applicant last held a substantive temporary visa on 15 March 2011. This application was made on 29 December 2014.

    10. On the material before it, the Tribunal finds that the applicant’s last held substantive visa was a temporary visa that was valid until 15 March 2011. Having regard to the various definitions of the term ‘relevant day’ in cl.3001(2), the Tribunal finds that the relevant day in this case is 15 March 2011, as it was the last day the applicant held a substantive visa.

    11. Given this application was not made until 29 December 2014, the Tribunal finds that the visa application was not made within 28 days of the ‘relevant day’.

    12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. 

    13. For these reasons, the applicant does not satisfy cl.602.213.

    14. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

11. Those findings by the Tribunal were clearly open.  There was no jurisdictional error by the Tribunal.  The applicant had the opportunity of attending the hearing and clearly received proper notice in respect of the same.  The Tribunal was entitled in the circumstances to proceed to determine the application. 

12. The applicant has failed to appear before this Court of the application, and there is no utility in granting an adjournment, as the proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60]. In considering the application of s.17A and r.13.10 of the Rules, I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

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

Associate: 

Date:  9 April 2015