Polepagedar v Minister for Immigration

[2011] FMCA 1051

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POLEPAGEDAR & ANOR v MINISTER FOR IMMIGRATION [2011] FMCA 1051

MIGRATION – Request for review of decision made by a delegate of the Minister for Immigration & Citizenship.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

First Applicant: KETAN BALANTRAO POLEPAGEDAR

Second Applicant: DIPTI KETAN POLEPAGEDAR

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2712 of 2011

Judgment of: Nicholls FM

Hearing date: 14 December 2011

Date of Last Submission: 14 December 2011

Delivered at: Sydney

Delivered on: 14 December 2011

REPRESENTATION

The Applicants: No appearance

Appearing for the Respondent: Mr M Alderton

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application made on 28 November 2011 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants pay the respondent’s costs set in the amount of $500.

3. Within 7 days of the making of these orders, the Minister’s solicitors write to the applicants by letter sent by registered post to the address for service provided notifying the applicants of the orders made and of Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2712 of 2011

KETAN BALANTRAO POLEPAGEDAR

First Applicant

DIPTI KETAN POLEPAGEDAR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 28 November 2011, made under s.476 of the Migration Act1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 11 November 2011, which found that it did not have jurisdiction in relation to an application made to it by the applicants on 23 September 2011 to review a decision made by a delegate of the first respondent cancelling the applicants (Subclass 573) Higher Education Sector Visas (“the visas”).

2. There are two applicants before the Court. The first named applicant is Mr Ketan Polepagedar and the second named applicant is Ms Dipti Polepagedar.

3. It appears that both applicants were granted visas. Subsequently both visas were cancelled. The first named applicant was the primary applicant and continued to take the lead before the Tribunal. (See at [2] of the Tribunal’s decision record, attached to the affidavit of the first named applicant which was filed at the same time as the application was filed in these proceedings).

4. In any event, when the matter was called today, neither applicant appeared. In those circumstances, Mr Alderton, who appeared for the Minister, made an application that this matter be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”).

5. As I said, there are two applicants in this application, and it is to both of those that I need to have regard. The application to the Court, on its face, appears to seek review of the delegate’s decision. The words “Migration Review Tribunal”, as they appear on page 2, are crossed out and, on a fair reading, it would appear that I can draw the inference that the applicants have made some concession that the Tribunal did not have jurisdiction and are seeking review of the delegate’s decision.

6. The Court yesterday received a medical certificate from a Dr Saad Saleh of Queens Road Medical Centre, Hawkesbury Road, Westmead, to the following effect:

   “Medical Certificate

   To whom it may concern:

   This is to certify that Mr Ketan Polepagedar has received medical treatment by me today and from Tuesday, 13 December 2011 to Thursday, 15 December 2011 inclusive. He has been unfit or not available to continue his usual job or study.”

7. Attached to this certificate is a document headed “Imaging Request”, signed by the same doctor in which the doctor requests an examination of:

   “… X-ray – Spine – Lumbo-sacral, X-ray – Spine – Thoracic. Clinical history: low back pain.”

8. Based on that, it is clear that the first named applicant has sought to explain his failure to appear today, the first Court date, when the matter was called on the basis that he was not medically fit to do so. Nothing has been heard from or about the second named applicant. Her failure to appear remains unexplained.

9. The applicants were put on notice by the Minister’s letter of 6 December 2011 (“Respondent’s Exhibit 1”) that any failure to appear at the first Court date today would lead to the Minister making the very application that Mr Alderton has made. That is, dismissal of the application for non-appearance, and the Minister seeking to recover some of the legal costs that have been incurred to date.

10. The question then in relation to the first named applicant is whether the explanation put forward is a satisfactory explanation such that the Minister’s application today should be refused. I note that the certificate has been put forward without any covering note as to when the applicant would be able to attend or indeed anything further. Though I should take note that an explanation of sorts has been put before the Court for the failure to appear.

11. In my view the explanation proffered is not a satisfactory explanation. It is clear that at least the first named applicant, and in the circumstances given their relationship, I am satisfied the second named applicant had knowledge of the Court event today. They would have been so notified at the time of the making of the application that the matter was set down for first Court date, 9.30 am, Wednesday, 14 December 2011. I note that it is now nearly 10.30 am and there has still been no appearance by either of the parties.

12. The explanation proffered by the first named applicant is simply a medical certificate which does not address the critical issue of any inability to attend Court today. At best, the doctor states in the certificate that he is not available to continue his usual job or study. The Court event is not “a usual job or study”. Nothing is said, for example, in this, or indeed nothing else has been proffered by the first named applicant, to indicate that, for example, he could not have participated by telephone, a facility which this Court from time to time has made available to applicants who, due to some physical incapacity, are not able to travel to Court, or indeed due to geographical distance from the Court. The explanation is not directed to the Court event.

13. It therefore does not explain, let alone provide any particularity to the applicant’s reasons for the absence today. A bare assertion of lower back pain does not give any indication as to severity of that pain, and gives no indication as to whether it is a factor that would have led to the applicant not being able to appear even electronically, for example by telephone or video link.

14. I am guided in my view that this is not a satisfactory explanation by the approach taken in NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17, particularly at [24], and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”) at [6], where in similar circumstances (except in those circumstances there was a covering letter), a certificate was held by the Federal Court to be unsatisfactory in explaining an absence. I note with particular reference to NAKX that the applicant’s current medical certificate does not even rise to the level of information that was provided in the medical certificate in that case.

15. Justice Lindgren, in NAKX, in circumstances where the certificate was generally addressed to an inability to attend Court, nonetheless found adversely to the applicant. In contrast, in this case it is clearly only addressed to an inability to study or to work. But even in those other circumstances his Honour said:

    “The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.”

16. It is just so in this case. There is nothing from the first named applicant, either by way of his medical certificate or the attached request for X-rays, to explain why the medical condition leads to an inability to attend Court.

17. I also take into account the circumstance that the applicants were both put on notice by the Minister’s formal response to their application of what can only be described as an important inadequacy in their application to the Court. At least on a fair reading, it appears that there has been some concession that the Tribunal lacks jurisdiction, and the application to the Court then appears to seek review of the delegate’s decision, said to have been made on 6 May 2011.

18. Simply put, and having regard to the Tribunal’s decision record which has been put before the Court by the applicants, the delegate’s decision is a decision that is reviewable by the Tribunal under Div.5 of Pt. 5 of the Act, and as such is a primary decision in respect of which this Court has no jurisdiction to entertain any application for judicial review. The fact that the Tribunal found that it did not have jurisdiction does not affect what I have just said, because the relevant provision set out in s.476(2) of the Act provides that the Federal Magistrates Court has no jurisdiction in relation to a “primary decision”.

19. A primary decision in s.476(4) of the Act means a purported privative clause decision that is reviewable under Pt.5, or would have been so reviewable if an application for such review had been made within a specified period. The applicants clearly did not make their application for review to the Tribunal within the specified period. It was on that basis that the Tribunal found it did not have jurisdiction. That it would have been so reviewable but for that omission still means that the delegate’s decision is a primary decision in relation to which this Court has no jurisdiction.

20. While the Minister’s application is of course based on the failure to appear, it is in one sense relevant to note, in the context of the exercise of the Court’s discretion pursuant to r.13.03(1)(c) of the Rules, that the Court has no jurisdiction to hear the matter in any event, which would add to the futility of allowing the matter to proceed any further beyond today.

21. But what is very clear is that, for the reasons that I have already outlined, the first named applicant has attempted to put an explanation before the Court for the inability to appear. I am not satisfied that it is in fact a satisfactory explanation. It is appropriate that the application in relation to the first named applicant be refused on that basis.

22. In relation to the second named applicant, no explanation whatsoever has been proffered. Her failure to appear in those circumstances puts her in an even more disadvantageous position than the first named applicant. The application in relation to the second named applicant should also be dismissed on that basis. I do take into account that it may be, as it appears occurred before at least the Tribunal, that the first named applicant was the primary applicant, and that the second named applicant may have felt that the application to the Court was dependent on the first named applicant, and that she should not appear.

23. That is only speculation, and whatever the reason, what I am left with is that no explanation whatsoever has been proffered on behalf of the second named applicant. The explanation proffered on behalf of the first named applicant, while unsatisfactory in his regard, provides no explanation, satisfactory or otherwise, in relation to any difficulty for the second named applicant to appear. So I will make the order as sought by the Minister on that basis.

Costs

1. In my view, it is appropriate that an order for costs be made in this matter. Nothing that I can see would argue against the making of an order for costs in the normal way. The applicants were on notice of that possibility on any failure to attend. The first named applicant’s certified medical condition is an unsatisfactory explanation. Quite separately, I do not see that as a satisfactory argument to argue against the making of the costs order.

2. Therefore, I will make the costs order. As to the amount, I am satisfied having regard to the work already done by the Minister’s solicitors that the amount sought is a reasonable amount. I will make the order in the amount sought.

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

Date: 15 March 2012