Reddy v Minister for Immigration
[2018] FCCA 1416
•9 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDDY v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1416 |
| Catchwords: PRACTICE AND PROCEDURE – Application for reinstatement – applicant failed to appear at first directions hearing – applicant claimed to have lost hearing documents when moving from one place to another – applicant’s address for service remained the same throughout this proceeding – applicant failed to establish a valid reason for non-attendance at court – applicant did not provide adequate reasons for delay in seeking reinstatement – applicant’s prospects of success negligible – application dismissed. |
| Legislation: Migration Regulations 1994, Sch.2, cls.570.232, 571.232, 572.231, 573.231, 574.231, 575.231 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | RAGHU RAM REDDY YANNA NAGI REDDY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1262 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 9 May 2018 |
| Date of Last Submission: | 9 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 9 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application in a case filed on 23 February 2018 is dismissed.
The applicant pay the first respondent’s costs of the application in a case fixed in the amount of $900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1262 of 2017
| RAGHU RAM REDDY YANNA NAGI REDDY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By application filed on 15 June 2017, the applicant sought review in this court of a decision by the Administrative Appeals Tribunal on 5 June 2017 affirming the decision of a delegate of the minister not to grant the applicant a student (temporary) (class TU) visa.
In this court, the matter was listed for first directions hearing before a registrar on 7 February 2018 at 10am. At that directions hearing, the registrar dismissed the application for non-appearance on 7 February 2018, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules. That rule permitted the registrar to dismiss the proceeding if the applicant was not present.
Delay
Twenty days later on 27 February 2018, the applicant applied to this court to reinstate this proceeding. While nearly three weeks was a relatively modest amount of time, it called for explanation. I was not persuaded that an adequate explanation for the applicant’s failure to appear on 7 February 2018 was given.
Reinstatement
The applicant’s grounds for seeking reinstatement of this proceeding were as follows –
1.My application for review was dismissed due to not appearing before due to losing a hearing schedule due to moving to another place.
2.My application was dismissed by FCC for not attending my directional hearing, and I would like to advise FCC that it was a genuine mistake that I have made and misplaced all the documents when I moved from one place to another place.
3.AAT has made an error of law while decision on my matter in FCC is the only place where I could fair outcome on my matter so I would like to request to FCC to re instate my application so that justice can be served.
4.Denying to reinstate my application would leave me middle of nowhere and I will have no further options left to seek review of this outcome. Please accept my application and give me chance to present my matter before the court.
(errors in original)
The applicant did not claim to be unwell or unable to attend court for any valid reason on the day of the directions hearing. He simply said that he misplaced his copies of the court documents that had the hearing date and time on them. The applicant’s address on his application filed 15 June 2017 and the address on his application for reinstatement filed on 27 February 2018 are the same. That tends to contradict his claim that he misplaced his court documents when he moved from one place to another. Alternatively, he misplaced his documents for his own reasons.
Furthermore, the court record indicates that the applicant has not filed a notice of address for service to notify the court that he had changed residence between the time that he filed his application and the day of the directions hearing nor, for that matter, until this day. In an affidavit affirmed 6 August 2018 the solicitor for the minister’s representative, Ashley Allen, deposed that the minister’s solicitor twice corresponded with the applicant on 4 July 2017 by letter to him at his address for service. The minister’s solicitor sent a letter that stated the directions hearing was listed on 7 February 2018 at 10am and enclosed the minister’s response to the application.
Furthermore, it seemed to me that the applicant could have telephoned the registry of the court to obtain the hearing information. There was no evidence he availed himself of that opportunity.
Prospects of success
In his substantive application, the applicant claimed that the tribunal made an error of law and that refusing to reinstate his application would leave him without any further options to seek review of the tribunal’s decision. In my view, that is a gross overstatement of the position having regard to the circumstances of this case. The substantive application contains seven paragraphs. They were as follows –
1.This is an application for review of a decision made by AAT on 5th June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act (the Act).
2.I applied for the visa on 16 May 2015 to undertake study in Australia. At the time the visa application was lodged the Student.
3.The delegate in this case refused to grant me visa on the basis that I did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations (the Regulations) because I did not satisfy that I was a genuine applicant for entry and stay as a student.
4.Tribunal has stated there that there is no evidence before the Tribunal that I am now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
5.I would like to advise to FCC that I have been currently enrolled at Australian Education Academy in Cert III, IV and Diploma of Hospitality. That is a clear evidence that AAT has made an error of law while deciding on my matter as they have clearly over looked my confirmation of enrollment with Australian Education Academy.
6.A jurisdictional error has occurred when AAT made a decision on my matter, and this is also an unfair proceeding tome.
7.I would like to make an appeal to FCC to set aside decision made by AAT and set new orders with directions to reconsider this matter.
(errors in original)
As mentioned above, that recording of the application was verbatim and any errors appeared in the original.
In considering the applicant’s prospects of success in his substantive case in this litigation I am required to consider whether the applicant’s grounds of review raise an arguable case that the tribunal fell into error within the meaning of the phrase as has been held in such cases as Craig v South Australia,[1] Minister for Immigration & Multicultural Affairs v Yusuf,[2] and Kirk & Anor v Industrial Court of New South Wales & Anor.[3] Many of the applicant’s grounds of review were not proper grounds of review. Instead they were a series of sentences without particulars and from which matters of fact and law were impossible to distil. Grounds of review without particulars are vulnerable to dismissal, as has been held in a litany of cases of the Federal Court of Australia such as WZATH v Minister for Immigration & Border Protection,[4] AQN15 v Minister for Immigration & Border Protection,[5] BHK15 v Minister for Immigration & Border Protection,[6] and WZAVW v Minister for Immigration & Border Protection.[7]
[1] (1995) 184 CLR 163
[2] (2001) 206 CLR 323
[3] (2010) 239 CLR 531
[4] [2014] FCA 969
[5] [2016] FCA 571
[6] [2016] FCA 569
[7] [2016] FCA 760
For the reasons I have just mentioned, grounds 1, 2, 3, 5 and 7 are amenable to dismissal and I so dismiss them.
To the extent that the applicant asserted jurisdictional error in grounds 4 and 5 and in ground 6 of his substantive application, in my view no such error was made out. An examination of the tribunal’s decision does not indicate any error of a jurisdictional nature. The applicant asserted that there was clear evidence of an error of law by the tribunal and that a jurisdictional error occurred at the tribunal. I disagree.
The applicant said in his substantive application that he was “currently enrolled” in various certificates and a diploma course at the Australian Education Academy. The question for the tribunal’s satisfaction at the time of its decision was whether the applicant was enrolled in or was the subject of a current offer of enrolment in a course of study as required by cls.570.232, 571.232, 572.231, 573.231, 574.231, and 575.231 of Sch.2 to the Migration Regulations.
The tribunal found that the applicant did not meet those clauses. In my view, the tribunal was entitled to so find. It made no error in reaching the conclusion that the applicant failed to meet those clauses as he was required to do. The tribunal affirmed the delegate’s decision to refuse the applicant a visa on the basis that there was no evidence before the tribunal that the applicant –
a)was currently enrolled in or the subject of a current offer of enrolment in any applicable course of study, and
b)met the criteria for any of the other subclasses of the class TU visa for which he applied.
That conclusion was open to the tribunal. In my view, the evidence pointed unassailably to that result.
The tribunal noted at paragraph 9 of its reasons for decision that when asked at the tribunal hearing on 25 May 2017, the applicant informed the tribunal that he was not currently enrolled in a course of study as required by the regulations. Furthermore, the tribunal observed that it allowed the applicant additional time, until 1 June 2017, to provide evidence of enrolment and that, as the date of the tribunal’s decision (being 5 June 2017), no such evidence was forthcoming from either the applicant or his migration agent.
The applicant failed to establish a valid reason for his non-attendance at court on 7 February 2018. Furthermore, his prospects of success in the substantive application in this case are extremely poor. No useful purpose would be served in reinstating this proceeding. Today I asked the applicant what he wished to tell me about any error he contended the tribunal made. He admitted that it was his mistake that he failed to attend court on 7 February 2018. I agree. It was his mistake but that is not a reason to reinstate his application.
I dismiss the application in a case and order the applicant pay the first respondent’s costs of the application in a case fixed in the amount of $900.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 31 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Appeal
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Abuse of Process
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