Nasir v Minister for Immigration & Border Protection

[2014] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

NASIR & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1497

Catchwords:

MIGRATION – PRACTICE & PROCEDURE – No appearance by the applicant – medical certificate unsatisfactory – applicant’s application for an adjournment of scheduled final hearing refused – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559

First Applicant: WAQAS NASIR

Second Applicant: ANA WAQAS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1147 of 2014

Judgment of: Judge Emmett

Hearing date: 3 July 2014

Date of Last Submission: 3 July 2014

Delivered at: Sydney

Delivered on: 3 July 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1147 of 2014

WAQAS NASIR

First Applicant

ANA WAQAS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Via email sent to the court yesterday at 2.15pm, the applicant sought an adjournment of today’s hearing on the basis that he is suffering from diarrhoea. The applicant attached a medical letter in the following terms:

   “I have seen Mr Waqas Nasir on 2/7/14. In my opinion/according to the patient’s statement he/she is/was suffering from personal illness: IFO diarrhoea and is/was unfit for his/her work/study for the period 2/7/14 to 3/7/14 inclusive”  

2. The terms of that medical certificate made clear that the diagnosis was made “according to the patient’s statement” whilst the medical certificate states that the applicant is unfit for his work/study for the period 2 July 2014 to 3 July 2014.

3. The first respondent opposes the adjournment application on the basis that the Court could not be satisfied about the nature of any illness where the diagnosis was made only in accordance with the applicant’s statement.

4. In support, the first respondent’s solicitor, Ms Stone, tendered pages 171 to 173 of the court book filed on 23 May 2014. Those documents together are marked exhibit 1R. Exhibit 1R includes a letter from the applicant’s migration agent, dated 5 February 2014, seeking an adjournment from the Migration Review Tribunal (“the MRT”) hearing because the applicant is suffering from diarrhoea and attaching a medical certificate to that effect.

5. The doctor issuing that medical certificate on 4 February 2014 appears to be the same doctor as the doctor who provided the medical certificate, dated 2 July 2014. On neither of the medical certificates, and particularly in the one received by the Court dated 2 July 2014, is there any expression by the doctor that the applicant is unfit to attend Court. Nor is there any opinion expressed by the doctor upon examination of the applicant.

6. In the circumstances, the terms of the medical certificate dated 2 July 2014 are not sufficient to explain why the applicant is unable to participate effectively in the hearing today. It does not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to court and participating effectively in the court hearing today (see NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J)

7. I note that the applicant attended a directions hearing before me on 2 June 2014, and on that occasion I explained to the applicant the role of this court in his proceeding, and the fact that the rules of this court provide that if his application does not raise an arguable case for the relief claimed, that his application may be dismissed. The applicant was given leave to file and serve an amended application together with any evidence and submissions in support by 18 June, and was also provided with the contact details of legal services providers and translating and interpreting services, and documents headed in his own language.

8. There has been no document filed by or on behalf of the applicants either in accordance with those directions or otherwise.

9. The applicant’s application for judicial review, filed on 29 April 2014, stated the grounds of review as follows:

   “1. Tribunal error by not taking into account properly reasons for none compliance with the visa conditions and reach to an incorrect conclusion that the applicant is not a genuine student:

   Particulars

   The applicant arrived in Australia on or about 24 March 2010 as a student. He has completed Diploma of Business in 5 August 2012. The applicant then started Diploma in Accounting.

   2. The Tribunal error by taking into account irrelevant consideration into account and reach to a incorrect decision that the applicant enrolled 14 times but completed only one diploma.

   Particulars

   Para 11 and 12 of the subject decision.

   The applicant did not breech any visa condition by obtaining more than one CoE. The relevant question was which Tribunal failed to ask that weather the applicant has studied during the period he stayed in Australia. If he did not than what are the circumstances beyond his control which prevented him from study.”

10. The submissions filed by the first respondent on 25 June 2014 set out the background and decision of the MRT:

    “Background

    2. The applicant is a male citizen of Pakistan born on 2 July 1985 (the applicant).[1] The second named applicant is the applicant's wife. 

    [1] CB 10

    3. The applicants applied for a Student (Temporary)(Class TU) visa on 5 December 2012. The applicant sought to meet the primary criteria for the visa and the second named applicant sought to rely on that application.[2]

    [2] CB 1

    4. There are a number of subclasses of Student visa.  The applicable subclass is determined by the type of course in which the applicant is enrolled or has an offer of enrolment.  In the present case the relevant subclass was 573 Higher Education Sector.

    5. At the time of the visa application (17 August 2010) a criteria for grant of a subclass 572 visa, in schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) was as follows (emphasis added):

    572.223

    (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

    (2) An applicant meets the requirements of this subclause if:

    (a) for an applicant who is not a person designated under regulation 2.07AO:

    (i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (B) any other relevant matter; and

    (iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or

    …

    6. The application was refused on 16 May 2013.[3]

    7. The applicants applied to the MRT for review of the delegate's decision on 3 June 2013.[4]

    8. The applicant gave oral evidence before the MRT on 2 April 2014. The MRT gave an oral decision at the hearing on 2 April 2014 and provided written reasons for the decision on 7 April 2014.

    [3] CB 82

    [4] CB [ref]

    The decision of the Tribunal

    9. The MRT found that the issue in the present case was whether the applicant was a 'genuine applicant for entry and stay as a student' having regard to the prescribed matters, pursuant to clause 572.223.[5]

    10. The MRT found that the applicant had not exhibited any genuine commitment to engaging in study in Australia.[6]

    10.1 As was discussed with the applicant he has enrolled in 14 courses since his arrival in Australia but had only completed one of them, being a Diploma of Business, awarded on 5 August 2012.[7]

    11. The MRT found that the applicant had not provided any basis on which it could be satisfied that the applicant would genuinely apply himself to his current or any future enrolment, and that he would therefore comply with any conditions subject to which the visa was granted.”

    [5] [8]

    [6] [15]

    [7] [10]

11. The first respondent’s solicitor submitted that the grounds of the application misunderstand the decision of the MRT in that the MRT found that the applicant was not a genuine student.

12. In making that finding, the MRT relied on the applicant’s study history and found that the applicant had undertaken 14 courses since 2010, only one of which had been completed and which was a short course. The MRT did not make a finding that the applicant had breached any of his condition visas, as suggested in the grounds of the application. The MRT found that the applicant was not a genuine student in that he had not exhibited any genuine commitment to engaging in study in Australia throughout the several years he has been enrolled in courses.

13. The MRT concluded on the evidence and material before it that the applicant is not a genuine applicant for entry into Australia as a student within the terms of cl.572.223 (b) of Schedule 2 to the Migration Regulations 1994 (Cth), and that being a mandatory criterion for the grant of a Subclass 572 visa. Accordingly, the MRT affirmed the decision under review. The MRT’s findings appeared to be open to it on the evidence and materials before it and for the reasons it gave.

14. Whilst I make no final decision in relation to whether or not the decision was affected by jurisdiction error, none is apparent on the face of the Tribunal’s decision record and none is identified by the applicant in the grounds of his application.

15. In the circumstances, I am satisfied that there is no utility in granting an adjournment to the applicant in that the applicant’s application for judicial review of the Tribunal’s decision does not have sufficient prospects of success such that it would be in the interests of justice to grant the applicant an adjournment.

16. Accordingly, the application for an adjournment is refused.

17. I am satisfied that the applicant is aware of today’s hearing. There is no appearance by the applicant.

18. The proceeding before this Court commenced by way of application filed on 29 April 2014 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the applicant’s failure to attend today’s hearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate:

Date: 11 July 2014