Shetty v Minister for Home Affairs

[2018] FCCA 3896

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHETTY v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3896

Catchwords:
MIGRATION – Show cause hearing – review of administrative appeals decision – no arguable claim established – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: SHRAVAN KUMAR KRISHNA SHETTY

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1015 of 2018

Judgment of: Judge Vasta

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Brisbane

Delivered on: 17 December 2018

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the Application filed 3 October 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1090 of 2018

SHRAVAN KUMAR KRISHNA SHETTY

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is a show cause application made by the Minister.  The Applicant filed an application on 3 December 2018 wanting this Court to review a decision made by the Administrative Appeals Tribunal (“the AAT”) on 4 September 2018.  That decision by the AAT affirmed an earlier decision not to give the Applicant a Student visa. 

2. The facts, in short compass, really are that the Applicant needed to do two things.  What the Applicant had to do was show that he had complied with criterion 4005 which required him to provide satisfactory results of a medical and X-ray examination.

3. The Tribunal did ask the Applicant to provide them with all of the documents.  The Applicant, the Tribunal noted, was made aware of the time of his visa application that he was required to undertake medical and X-ray examinations but he did not do so. 

4. He was invited to attend a hearing on 1 August 2018.  In that invitation, he was requested to provide all documents upon which he intended to rely to establish he met the criteria of the visa.  The Tribunal advised if the Applicant had not undertaken a medical assessment, he could provide evidence that he made arrangements for one.

5. The Applicant accepted the invitation to attend the hearing and, on the night before the hearing, he submitted a medical certificate stating he was unfit for work or study and requested a postponement of the hearing.  That was done and a new hearing date of 16 August was set down. 

6. On 7 August, the Applicant wrote to the Tribunal advising he did not wish to attend the hearing and he wished to have a decision made without having to appear at the hearing.  He said the reason for this was that, despite several attempts, he had been unable to procure an offer letter or enrolment certificate for a university or for a Masters course.

7. The Applicant provided a written submission which set about his circumstances, including a study and health history which acknowledged the information requested by the delegate. He provided no evidence to the Tribunal that showed that he had had a medical examination and X-ray examination. 

8. The Tribunal looked at the fact that the Applicant had not provided satisfactory results of the medical and X-ray examination.  The Tribunal seemed to also look at the fact that the Applicant had not been in a course or been enrolled in a course.

9. But it seems fairly clear from paragraphs 24 (i) and (ii) that there was an independent decision made that he did not meet the criteria because of the lack of medical assessment and X-ray assessment.  In (iii) and (iv) of that same paragraph, it did talk about his lack of enrolment and then at paragraph 25, it simply states:

   …on the basis of the above, the tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student within the terms of clause 572.224.

10. There may be some mistake about that, but certainly it is clear that the Tribunal has made an independent assessment on the medical and X-ray evidence and, whether or not they ended up making a decision with regard to the certificate of enrolment, really does not particularly matter. 

11. Having regard to that, the Tribunal affirmed the decision. 

12. The Applicant detailed grounds of the application but really most of those were statements of argument.  He does say at ground 3:

    …I was not in the situation of going for the medical examination because of I had exceptional circumstances beyond my control … the case officer did not understand the situation and had refused the visa under the section 65 of the Act, which is not fair.

    And every other aspect seemed to really go to the certificate of enrolment. 

13. But, as has been pointed out by Ms Allen, really the force of the decision is that he did not undergo the required medical examination or X-ray examination.  The aspect in the grounds that the Applicant relies on just do not illustrate any arguable claim that he could make that there had been a jurisdictional error. 

14. There is no evidence before the Tribunal at all that he had undertaken the medical and X-ray examination and, despite his claim that he had done something like that, it simply is not here in the green book.

15. It seems to me then that this matter is simply not able to be argued and the Applicant has failed to show cause. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 10 January 2019