PRAKASH v Minister for Immigration - [2006] FMCA 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRAKASH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 206

MIGRATION – MRT decision – application for judicial review dismissed for failure to appear – application to set aside order – no merits – no acceptable explanation.

Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Migration Act 1958 (Cth), ss.474, 475

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

GITA PRAKASH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG2551 of 2003

Judgment of:

Smith FM

Hearing date:

8 February 2006

Delivered at:

Sydney

Delivered on:

8 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 13 December 2004 is refused.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2551 of 2003

GITA PRAKASH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application by a person held in immigration detention, seeking to set aside orders I made on 13 December 2004 which dismissed the substantive application due to the absence of the applicant at the hearing of an application by the Minister for summary dismissal.
The applicant has been in detention since July 2005 but did not apply for the setting aside of the orders until 23 December 2005. His application came to my attention earlier this year, and was listed before me on 20 January 2006. The application also sought interim orders restraining the applicant’s removal from Australia, but I was not able to satisfy myself, on that occasion, that the applicant had any prospects of success in either his substantive application or his application to set aside. I declined to make interim orders to restrain his removal on that day.
However, I offered the applicant a short adjournment or a longer adjournment to today, to allow him a further opportunity to improve his evidence and arguments in support of his application to set aside. He chose the longer adjournment and, as it has happened, the Minister has not removed the applicant. He has been brought to Court today, and has been given a full opportunity to present his arguments. He has filed an affidavit seeking to explain his absence from Court on 13 December 2004, and was cross‑examined on it.
The substantive application was filed on 25 November 2003. Three applicants were named, the present applicant, his wife and daughter. They sought orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 29 October 2003. In that decision the Tribunal decided that none of them qualified for a visa of the class for which they applied on 12 September 2002. The visa is described as a Close Ties, Special Eligibility (Residence) (Class AO) Subclass 832 visa.
It is unnecessary for me to analyse in detail the criteria which the Tribunal addressed when deciding that they did not qualify. The relevant regulations and evidence are fully set out in the Tribunal’s decision. As I shall indicate, the applicant has not been able to point to any argument challenging the Tribunal’s conclusions whether in fact or law. In short, it was plain on uncontested facts that the applicant could not qualify. To do so he would have had to show one of three situations: that he had entered Australia before January 1975; or that he had ceased to hold a substantive visa allowing residence in Australia before he turned 18; or that he had made an application for the visa within 12 months after the last date when he held a substantive visa to be in Australia. The applicant had last arrived in Australia on 5 January 1999 when he was over the age of 18, his last substantive visa had ceased on 26 August 1999, and his application had been lodged on 12 September 2002. He was therefore plainly unable to meet any of the three alternatives. Indeed, nowhere in the papers before me has it ever been contended by, or on behalf of, the applicant that he was able to qualify for this visa.
The application originally filed in this Court by the three members of the family contained three grounds:
1.That the decision by the MRT was incorrect and wrong in law.
2.The application involves Section 78P of the Judiciary Act 1903 which involves a matter under Constitution.
3.The application is to challenge the decision of the MRT under Section 39B of Judiciary Act 1903.
However, the assertion in paragraph one of error of law has no merit whatsoever, for the reasons I have explained, and the application makes no attempt to give it substance.
Nor, in my opinion, is there any substance in the assertion that the application involves a Constitutional point. An amended application filed by the applicant’s wife and daughter on 13 September 2004 purported to identify as Constitutional issues:
(a)Whether s 474 of the Migration Act 1958 is invalid.
(b)Whether s 475 and 476 of the Migration Act 1958 are invalid.
Such contentions have no prospects of success in the face of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Moreover, the validity of s.474 and s.475 could only arise as an issue if the applicant could point to grounds for obtaining judicial review of the Tribunal’s decision, absent the restrictions imposed under s.474 in relation to privative clause decisions. As I have indicated above, there is no such basis for the grant of relief. The alleged Constitutional point therefore does not arise.
The applicant in his submissions to me today has not attempted to challenge the reasoning of the Tribunal. His argument was, in effect, that he is a person deserving of residence in Australia for himself and his family even if he did not qualify for this visa, and that his rights are “violated” by his being excluded from residence. However, these are not contentions which could allow this Court to give the relief sought in his applications.
I therefore consider that I must refuse the application to set aside my order dismissing the substantive application, due to the absence of any prospect of success if the matter were reinstated. I note that the application to set aside was brought only by this applicant, and that the other applicants who were subject to my order have not applied to have it set aside.
The hearing today also addressed whether the applicant has provided an acceptable explanation for his absence from the Court on 13 December 2004. I was satisfied on that day that notice of the Minister’s interlocutory application had been duly served on the applicant by posting to the address for service which he had given the Court, both in his original application and in an information sheet signed by him when he attended the first court date.
The applicant today has not contended that proper service was not attempted by that means. He claimed, however, that he had moved address without informing the Court and without informing the then solicitors for the Minister, of whose name he was aware. He also claimed that he had informed the Minister’s Department of his change of address by way of a letter. This was disputed by the Minister, and no record of such notification exists in the Department’s files.
The applicant attempted to persuade me that he did not know that he had to notify the solicitors for the Minister or the Court of his change of address, and said that he “thought it not a wise thing to do to correspond with the solicitors for the Minister”. However, he is a person competent in English who has been resident in Australia for many years. He signed an information sheet when he attended the first court date which should clearly have brought to his attention the need to keep the Court informed of a current address. I do not believe that he was not aware of the need to keep the Court and the Minister’s solicitors informed of his address for receiving correspondence in relation to the Court application which he had brought. I do not accept that he notified the Department of his new address. I consider that he made a conscious decision to avoid giving any notice of his new address. In my opinion, he has not provided an acceptable explanation for his absence.
For the above reasons, I consider it appropriate to refuse the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 February 2006