Ruzmetov v Minister for Immigration

[2014] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUZMETOV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 117

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – failure of the applicant to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Berenguel v Minister for Immigration (2010) 85 ALJR 251

Endi v Minister for Immigration & Anor [2013] FCCA 1700
Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779
Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439

Applicant: JASUR RUZMETOV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2194 of 2013

Judgment of: Judge Driver

Hearing date: 28 January 2014

Delivered at: Sydney

Delivered on: 28 January 2014

REPRESENTATION

No appearance by the applicant

Counsel for the Respondents: Mr B O'Donnell

Solicitors for the Respondents: Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. 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).

3. 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 at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2194 of 2013

JASUR RUZMETOV

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 filed on 17 September 2013 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal decision was made on 16 August 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a provisional skilled visa.  The application is defective in that, although it contains a single ground asserting jurisdictional error when applying regulation 1.15C of the Migration Regulations 1994 (Cth) (Regulations), it provides no particulars.

2. The matter came before me for first court date directions on 15 October 2013.  At that time it occurred to me that there may be a legal issue whether the Regulations applied by the Tribunal had the effect apparently intended by the drafter of them.  The apparent intention of the Regulations, as amended, was to overcome the decision of the High Court in Berenguel v Minister for Immigration[1].  The Tribunal found that although Mr Ruzmetov had apparently passed an International English Language Testing System (IELTS) test conducted on 23 February 2013, that could not assist him as the test was undertaken after he had made his visa application.

   [1] (2010) 85 ALJR 251

3. The apparent effect of the Regulations as amended is to convert what had been taken to be a time of decision criterion into a time of application criterion.  It is with those thoughts in mind that I made order 10A on 15 October 2013:

   The Court notes that the Tribunal apparently disregarded English language test results obtained by the applicant after he made his visa application, having regard to amendments to the Migration Regulations 1994 (Cth), which appear to have had the intended purpose of changing what was formerly a time of decision criterion to a time of application criterion.

4. I had hoped that between then and now, when the matter was listed for a show cause hearing, some judicial guidance might have been provided for the interpretation of the Regulations.  I was today taken by counsel for the Minister to three decisions of this Court, namely Palanisamy v Minister for Immigration & Anor[2], Endi v Minister for Immigration & Anor[3], and Singh & Ors v Minister for Immigration & Anor[4].  It appears from those decisions that there has not been any judicial view expressed that the meaning of the Regulations, as amended, is something other than that which was apparently intended.

   [2] [2013] FCCA 1779, in particular at [20]

   [3] [2013] FCCA 1700, in particular at [2]

   [4] [2013] FCCA 1439, in particular at [13]

5. Had Mr Ruzmetov appeared in Court today, I would have heard argument from the parties whether the Minister should be required to show cause at a final hearing why relief should not be granted in respect of the issue of whether the Tribunal misinterpreted the Regulations.  However, Mr Ruzmetov did not appear.  Rather, he sent a facsimile to the registry earlier today which states, relevantly:

   Dear Judge

   My name Jasur Ruzmetov and my court file number is SYG2194/2013.  As you know it is show cause hearing date today.  Unfortunately, I am feeling really sick and I am not able to attend the hearing today.  It is totally beyond my control.  Therefore, I would like to ask you to adjourn the show cause hearing date to a later date.  It is really important for me.  I believe I deserve a chance to attend the hearing another day, as now it is completely beyond my control.  I attached the medical certificate. 

   Please consider my situation.

6. Attached is a facsimile copy of a medical certificate from Dr Aladdin Matter, whose office is at 18/324-330 Pitt Street in Sydney.  Dr Matter certifies today that Mr Ruzmetov has been examined by him and was found to suffer from epistaxis.  Dr Matter certified that Mr Ruzmetov was unfit to attend university today. 

7. I am not persuaded on the face of the medical certificate that it provides evidence of Mr Ruzmetov’s inability to attend court, as opposed to attending university.  I also note that he was able to travel into the city, see the doctor, and to obtain a medical certificate.  Dr Matter’s office is only a short distance from the Court.  Before I came on the bench, I had my deputy associate attempt to contact Mr Ruzmetov on his nominated mobile telephone number, with the assistance of the Uzbek interpreter who attended Court this afternoon.  The telephone was answered by a person who said he was not the applicant, but was a friend of his, and that the applicant was currently staying at his home.  The gentleman said that he was not there at the moment, but rather was at work, and hence he was unable to put Mr Ruzmetov on the phone.

8. In the circumstances, it has not proved possible to discuss the issue any further with Mr Ruzmetov.  The Minister seeks to have the application dismissed on account of Mr Ruzmetov’s non-attendance at Court today.  I agree that that is the appropriate course.  First, Mr Ruzmetov has done nothing since 15 October 2013 to advance any consideration of the potential legal issue I raised in the orders I made on 15 October 2013.  Secondly, Mr Ruzmetov has failed to attend Court today and his explanation of asserted ill health is unpersuasive based, as it is, on a medical certificate which is limited to his fitness to attend university.  Thirdly, Mr Ruzmetov has, by providing his mobile telephone to someone else, prevented the Court from discussing his circumstances with him personally. 

9. For all of these reasons I have decided to dismiss the application on account of Mr Ruzmetov’s non-attendance and I so order. 

10. 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 2001 (Cth).

11. 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 at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 29 January 2014