Rudhravaram v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 301

[2014] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2014

B e t w e e n -

SAIKIRAN RUDHRAVARAM

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 19 DECEMBER 2014, AT 10.06 AM

Copyright in the High Court of Australia

COURT OFFICER:   No appearance, your Honour.

MR N.D.J. SWAN:   May it please the Court, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

HER HONOUR:   Mr Swan, do you seek to address the Court?

MR SWAN:   Your Honour, as I understand it this is listed for hearing the applicant’s summons, but he has also made an adjournment application to the Registrar which I understood was to be heard today.

HER HONOUR:   Yes.

MR SWAN:   Has your Honour seen that adjournment application?

HER HONOUR:   Yes.

MR SWAN:   Would your Honour like me to address?

HER HONOUR:   Yes.

MR SWAN:   The Minister opposes that for a number of reasons.  The basis for the adjournment appears to be that the applicant is in India in circumstances where it appears that his brother is unwell.  The Minister’s position is first that there is absolutely no evidence provided to support the claim that the applicant’s brother is ill.  In that connection, your Honour, the applicant made a number of similar adjournment applications before Justice Mortimer in the Federal Court and also did not adduce any evidence of that nature.

Secondly, your Honour, the applicant has given no evidence to indicate when he will return.  I do note that the applicant has said to the Registrar that he will return on the 30th of this month, but there is no evidence to support that.  Thirdly, your Honour, we would submit there is no utility in granting the adjournment.  The applicant’s past history in all aspects before the Tribunal, before the Circuit Court and before the Federal Court indicates that he has been given many opportunities to advance a case in relation to his visa and then in relation to the court proceedings and has taken none of them.

Additionally, your Honour, for the reasons that are set out in our written submissions on the summons, we submit that effectively this case is doomed to fail and, in that sense, there is no utility in continuing the proceedings by granting an adjournment.  Thank you, your Honour.

HER HONOUR:   Thank you, Mr Swan.

This is an application by summons to reinstate an application for special leave to appeal taken to have been abandoned.

On 2 October 2014, the applicant filed an application for special leave to appeal against orders of the Federal Court of Australia (Mortimer J) dismissing the applicant’s appeal to that court from a decision of the Federal Circuit Court of Australia (Judge Reithmuller).

The second respondent, the Migration Review Tribunal, has filed a submitting appearance. 

As the applicant is unrepresented, rule 41.10.3 of the High Court Rules required the applicant to file a written case within 28 days of the filing of the application for special leave to appeal.  The applicant did not do so. 

Rule 41.10.4.1 of the High Court Rules provides that, if an unrepresented applicant does not comply with the time limit imposed by rule 41.10.3(c), the applicant’s application for special leave to appeal will be taken to be abandoned unless the Court or a Justice orders or directs otherwise ‑ orders which are now sought on the applicant’s summons. 

The history of these proceedings is described in the reasons for judgment of Mortimer J, reported in Rudhravaram v Minister for Immigration and Border Protection [2014] FCA 960. On 19 November 2011, a delegate of the Minister refused the applicant’s application for a Student (Temporary) (Class TU) visa. On 23 August 2013, the Migration Review Tribunal affirmed that decision. The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

On 19 May 2014, Judge Reithmuller dismissed the application for judicial review with costs.  On 4 September 2014, Mortimer J dismissed the applicant’s appeal from Judge Reithmuller’s decision.  Her Honour found that the applicant had failed to identify any legal error on the part of the Federal Circuit Court.

The applicant has filed an affidavit in support of his summons, dated 26 November 2014.  He states that he did not file a written case within the time required because of lack of knowledge of the time requirement and financial hardship.  The applicant has exhibited a proposed written case and draft notice of appeal to his affidavit.

The first respondent opposes the applicant’s application to reinstate his application for special leave to appeal.  It has been argued that the applicant has failed to satisfy the Court either that he has an acceptable explanation for his failure to comply with the requirements of the Rules or that, in the circumstances of the case, the interests of justice require his application to be reinstated:  see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 352. In particular, the first respondent submits that the application for special leave to appeal has no prospects of success.

By email dated 16 December 2014 the applicant notified the Court that he would be unable to attend the hearing today as he is in India.  The applicant requested an adjournment and has advised he will not return to Australia until 30 December 2014.

The respondent by counsel, Mr Swan, opposes the grant of an adjournment for a number of reasons but, most critically, because a grant of an adjournment today would be futile.  Rule 13.03.4 of the High Court Rules provides that this Court may proceed to determine an interlocutory application in the absence of the applicant.  In the circumstances of this case, I am satisfied that it is appropriate to do so and appropriate to refuse the applicant’s request for a further adjournment.

The applicant’s proposed written case and draft notice of appeal are before the Court and these documents show that the applicant cannot succeed in his application to reinstate his application for special leave to appeal.  It would not be in the interests of justice to postpone the determination of that application.  The applicant’s application for special leave to appeal filed on 2 October 2014 has no prospects of success.  The applicant’s proposed written case and draft notice of appeal do not raise any issue of principle or question of public importance which would warrant consideration by this Court or any arguable case of error in the courts below.  In the circumstances, it would be wrong to grant the applicant’s application to reinstate the application for special leave to appeal.

The order of the Court is:

1.         The applicant’s application for an adjournment is refused.

2.The applicant’s summons filed on 26 November 2014 is dismissed with costs.

AT 10.15 AM THE MATTER WAS CONCLUDED