Patel v Minister for Immigration

[2013] FCCA 2147

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2147

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – failure by the applicant to provide reliable financial information – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant: DHAVALKUMAR SHASHIKANT PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1906 of 2013

Judgment of: Judge Driver

Hearing date: 11 December 2013

Delivered at: Sydney

Delivered on: 11 December 2013

REPRESENTATION

The applicant declined to appear

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

4. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post addressed to his nominated postal address for service.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1906 of 2013

DHAVALKUMAR SHASHIKANT PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 15 July 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Patel, a temporary student visa.  Mr Patel applied to the Minister’s Department for the visa on 1 March 2011.  That application was refused by the Minister’s delegate on 18 April 2011.  Mr Patel sought review before the Tribunal.  It appears that there was a long delay in the matter reaching a hearing before the Tribunal.  When Mr Patel was eventually invited to attend a hearing, he declined that opportunity.  The Tribunal then elected to deal with the matter without a hearing. 

2. The Tribunal decision records that Mr Patel sought the visa to continue vocational education in Australia.  The delegate had sought additional documents to support financial aspects of the application, but that was not received.  It appears that it was on that basis that the delegate refused the visa.  Given the passage of time since the review was sought, the Tribunal invited Mr Patel to provide current material in respect of his enrolment and financial aspects of the application, among other things, when he was offered the opportunity to appear.  He provided a copy of material previously provided to the Minister’s Department with some additional material. 

3. However, the Tribunal was concerned in particular that the financial information provided was several years old. Of concern to the delegate was satisfaction with the requirements regarding evidence supplied in respect of financial requirements under schedule 5A to the Migration Regulations 1994 (Cth). The Tribunal found that that difficulty remained. The Tribunal also had concerns with the authenticity of some of the information provided by Mr Patel. Leaving that problem aside, the Tribunal concluded that the financial information provided by Mr Patel was simply too out of date to be relied upon. The Tribunal concluded that Mr Patel had not given evidence in accordance with clause 5A 4051(a), supporting the relevant visa criteria in Part 572 of Schedule 2 to the Regulations, and accordingly affirmed the decision under review.

4. These proceedings began with a show cause application filed on 15 August 2013.  Under the heading, “Grounds of application”, Mr Patel has written simply:

   I am not satisfied with decision of Migration Review Tribunal.

5. The application was accompanied by a short affidavit enclosing the Tribunal decision and repeating that Mr Patel is not satisfied with the decision.  He offers the opinion that the Tribunal did not consider his “appeal” properly. 

6. Mr Patel appeared before me in person with the assistance of a Gujarati interpreter on 5 September 2013.  At that time, I recall pointing out to Mr Patel the difficulty I had with his application, in that it did not properly engage the jurisdiction of the Court.  I gave leave for Mr Patel to file and serve and amended application, giving particulars of each ground of review relied upon, by 10 October 2013.  He has not taken up that opportunity.

7. The matter was listed today for a show cause hearing.  Ms Blake appeared for the Minister, but there was no appearance by or on behalf of Mr Patel when the matter was called.  Ms Blake provided me with a printout of the email correspondence earlier today with the applicant.  I have received those documents as evidence[1].  The first email from Mr Patel to Ms Blake, sent today at 7.34 am, states as follows:

   [1] Exhibit A1

   Dear Natasha

   I am writing to this email regarding my federal court hearing.  My full name is Dhavalkumar Shashikant Patel and my address is ….  And my contact no is… .  Actually I have  hearing date tomorrow at 12 December 2013 at 2.30 pm, unfortunately, I am not able attend my hearing date tomorrow, because of I am very very sick, if possible could you please extend my hearing date,   Also federal circuit court no is “SYG1906/2013”.  Beside I will send you my medical certificate today.  And I am really apologize to unattended my hearing date tomorrow.  I am waiting for your reply. 

   I look forward to hearing from you.

8. Ms Blake responded shortly afterwards in the following terms:

   Dear Mr Patel

   I am unable to extend the hearing date, for that is a matter for the Court. 

   I also note that the hearing is scheduled for 2:30 pm today. 

   Kind regards

   Natasha Blake

9. Then at 12.38pm today, Mr Patel sent a further email to Ms Blake enclosing what purports to be a medical certificate from Edmond Kwan Medical Services Pty Ltd at Parramatta.  The handwritten medical certificate which is dated today relevantly states as follows:

   This is to certify that Dhavalkumar Shashikant Patel is unfit for work on 11.12.2013 due to an acute [illegible word] pain.

   In his covering email, Mr Patel stated:

   This is my medical certificate, unfortunately, I am not able to attend my hearing date, I am really unwell, thanks

10. With the assistance of my deputy associate and the interpreter, who attended Court today, Mr Patel was contacted on his nominated mobile telephone number.  He and I then had a conversation.  I enquired of Mr Patel why he was not in Court.  He responded that he was sick.  I referred to the documentation I had been provided by Ms Blake and asked Mr Patel what his problem is.  He stated that he is suffering acute body pain of some unspecified kind and that he was unable to walk.  I asked how he had managed to attend the doctor at Parramatta[2].  He said that he had been taken there by a friend.  I enquired whether his friend could have brought him to Court.  He responded that his friend was busy and had to work.  I asked Mr Patel what his work is, and he said he works as a cleaner.  I pointed out to Mr Patel that the medical certificate, whilst stating that he is unfit for work today, does not express any opinion on his fitness to attend Court.  Mr Patel responded that he is in great pain and was unable to attend Court. 

    [2] Mr Patel lives at Harris Park

11. I gave Mr Patel the opportunity to appear by telephone.  He asked for an adjournment of the hearing to another day.  He said he is taking medication for his pain.  I asked what that medication is; he told me it was Panadol.  I expressed surprise that his doctor had not prescribed something stronger for severe pain.  He repeated that he is taking Panadol.  It did not appear to me that Panadol could affect the capacity of Mr Patel to attend Court and answer questions, and I again offered him the opportunity to appear by telephone.  He several times again requested an adjournment, which I declined to grant.  I pointed out to Mr Patel that I saw no useful purpose to be served by granting an adjournment, given the state of his application which he had chosen not to amend.  Mr Patel ultimately declined the opportunity to attend by telephone, and left the matter on the basis that I would deal with it in his absence.  I elected to proceed in the absence of Mr Patel.

12. The application does not assert any jurisdictional error in the Tribunal’s decision or in the process leading to that decision. Neither is any arguable case of jurisdictional error apparent to me from any of the available material. In the circumstances, I have concluded that the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), and I will so order.

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. I agree. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

14. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post addressed to his nominated postal address for service.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 December 2013