Shetty v Minister for Home Affairs
[2019] FCA 1056
•5 July 2019
FEDERAL COURT OF AUSTRALIA
Shetty v Minister for Home Affairs [2019] FCA 1056
Appeal from: Application for leave to appeal: Shetty v Minister for Home Affairs & Anor [2018] FCCA 3896 File number: QUD 3 of 2019 Judge: COLLIER J Date of judgment: 5 July 2019 Catchwords: MIGRATION – application for leave to appeal – show cause in Federal Circuit Court rule 44.12 – whether sufficient doubt attending primary judgment to warrant reconsideration Legislation: Migration Act 1958 (Cth) s 65
Federal Circuit Court Rules 2001 (Cth) r 44.12, 44.12(1)(a)
Migration Regulations 1994 (Cth) Sch 2 cll 572.223, 572.224, Sch 4
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
House v The King (1936) 55 CLR 499
Shetty v Minister for Home Affairs & Anor [2018] FCCA 3896
SZSLD v Minister for Immigration and Citizenship [2013] FCA 547
Date of hearing: 5 July 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr J Kyranis of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 3 of 2019 BETWEEN: SHRAVAN KUMAR KRISHNA SHETTY
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
5 JULY 2019
THE COURT ORDERS THAT:
1.The application for adjournment of today’s proceeding be refused.
2.The application for leave to appeal be dismissed.
3.The Applicant pay the costs of the First Respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an application for leave to appeal from the decision of the Federal Circuit Court of Australia delivered on 17 December 2018 in Shetty v Minister for Home Affairs & Anor [2018] FCCA 3896. In that decision the primary Judge found pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the applicant Mr Shetty had failed to raise an arguable case for the relief claimed, and dismissed the application. The relief the applicant claimed below was primarily an order quashing the decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed the earlier decision made by a delegate (delegate) of the first respondent the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (Minister) to refuse the grant of a Student (Temporary) (Class TU) Vocational Educational and Training Sector (Subclass 572) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
APPLICATION FOR ADJOURNMENT OR TELEPHONE HEARING
Last night outside business hours the applicant emailed the Queensland Registry of this Court requesting the matter be adjourned. That email was provided to my Chambers this morning. In the email Mr Shetty wrote, materially:
I request the federal court of Australia to postpone the hearing or for telephonic hearing as my medical condition is not supporting me to attend the hearing tomorrow (5th July 2019). As I mentioned before during my last hearing, I am going through a rough phase with regards to my health, as I was recently gone through appendicitis operation. I am still recovering slowly and I am not in a position to attend the hearing physically, I would request for Postponing the Hearing as I could not follow up much with my written submission and meeting the barrister for the same. Also, I am in Melbourne at the moment as my cousin is looking after me after the operation. If the extension is not possible, then I would request for a telephonic hearing. I apologize to the honorable federal court judge as I am unable to make submissions in the given time frame, also I apology to the honorable federal court judge for a delay in making a request for hearing postponement. Therefore, I request the officer to convey this message to the respected registrar and honorable judge to postpone the hearing. The same email is sent to respondents as well.
Please consider the above request and do the needful.
I note that this matter was originally listed for hearing on 18 June 2019. At that time Mr Shetty had communicated with the Court the previous day, again after close of business, requesting an adjournment for health reasons. At the time Mr Shetty provided a medical certificate referable to abdominal complaints. In the absence of more detailed information I gave Mr Shetty the benefit of the doubt and granted an adjournment until today.
Mr Shetty’s informal application for an adjournment or telephone hearing is currently not accompanied by any medical evidence. I note that he is a litigant in person and that English is not his first language. However, I also note that he is an educated man, who has been in Australia for some time, and further that this is not his first exposure to Australian legal process.
Today Mr Shetty appeared by telephone. He stated that he could provide further medical evidence, and further that he was in the process of briefing lawyers to assist him with his case.
In the absence of medical evidence supporting his statements of surgery, in view of the previous adjournment of this hearing, and in view of the fact that Mr Shetty appeared able to participate in a telephone hearing, I was not prepared to adjourn today’s hearing. I also do not accept Mr Shetty’s submission that he is in the process of seeking legal representation – I note that this proceeding has been on foot for more than six months and that he has had ample time to brief lawyers to assist him if he had any real intention of doing so.
BACKGROUND
Mr Shetty is a citizen of India. In August 2013, he arrived in Australia on a student visa to undertake a Master of Engineering. On 22 June 2016, he applied for a student visa to undertake an Advanced Diploma in Leadership and Management. On 23 June 2016, the Department of Immigration and Border Protection requested that the applicant provide evidence that he had undertaken, or was undertaking, health examinations. The applicant did not do so.
On 29 September 2016, a delegate of the Minister refused the visa application on the basis that Mr Shetty did not satisfy cl 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as the public health criteria in PIC 4005 of Schedule 4 to the Regulations were not met. With respect to other subclasses in class TU (namely subclasses 570, 571, 573, 574, 575 and 576), Mr Shetty did not satisfy the primary criteria nor the secondary criteria.
Mr Shetty applied to the Tribunal for review of the delegate’s decision. On 28 June 2018, the Tribunal invited him to attend a hearing on 1 August 2018, requesting that he bring evidence illustrating he was currently enrolled or held an offer of enrolment, evidence of health examinations and a statement addressing whether he was a genuine temporary entrant.
On 27 July 2018, Mr Shetty’s representative provided submissions to the Tribunal. On 31 July 2018 (the night before the hearing) the representative submitted a medical certificate for the applicant and sought a postponement. A new hearing date was set for 16 August 2018.
On 7 August 2018, Mr Shetty wrote to the Tribunal advising that he did not wish to attend the hearing and was content for the decision to be made without his appearance. The applicant stated his reason for this was an inability to procure an offer letter or enrolment certificate.
DECISION OF THE TRIBUNAL
On 4 September 2018, the Tribunal affirmed the delegate’s decision. The Tribunal held that:
·The applicant had not provided evidence that he satisfied the public health criterion, despite being aware of this requirement (Tribunal Reasons [24(i)]).
·The applicant had been made properly aware of the requirements of cl 572.224(a) by both the delegate and the Tribunal, as well as the need to satisfy PIC 4005. The applicant had also confirmed his awareness in a written submission to the Tribunal. (Tribunal Reasons [24(ii)]).
·The applicant was not enrolled in a specified course and did not have an offer of enrolment in a specified course. The applicant had submitted information to this effect. (Tribunal Reasons [24(iii)]).
·The applicant’s claimed reasons for not progressing academically in his studies were not supported by corroborating evidence. The Tribunal did not accept that the applicant’s difficulties with his studies were not primarily due to factors outside his control. (Tribunal Reasons [24(iv)]).
Given that Mr Shetty applicant did not meet the criteria in cl 572.224, the Tribunal did not assess whether the applicant met the requirements of cl 572.223 (the enrolment requirement) or other clauses.
IN THE FEDERAL CIRCUIT COURT
On 3 October 2018, the applicant filed an application seeking judicial review of the decision of the Tribunal. On 17 December 2018, there was a show cause hearing before the primary Judge in this case.
Before the primary Judge the applicant raised ten grounds for review which can be reduced to the following issues:
·The applicant could not undergo the required medical examination due to exceptional circumstances beyond his control;
·The Tribunal failed to consider the applicant’s situation and his study progress;
·The Tribunal denied the applicant procedural fairness by failing to have regard to his claims and arguments; and
·The Tribunal made different findings to the delegate.
The primary Judge at [2] to [11] summarised the factual background and the decision of the Tribunal, noting that the Tribunal had affirmed the decision under review. His Honour confirmed there had been “an independent decision” that the applicant did not meet the criteria due to a lack of evidence surrounding the medical assessment and X-ray assessment.
At [12], His Honour noted that most of the applicant’s grounds for review were ‘statements of argument’. In his third ground for review, the applicant explained that he was unable to attend a medical examination due to ‘exceptional circumstances’ beyond his control.
His Honour noted at [13] that:
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.
The primary Judge noted in [14] that ‘the force of the decision is that he did not undergo the required medical examination or X-ray examination’.
The primary Judge concluded that the applicant did not raise an arguable case evidencing jurisdictional error. Accordingly, the primary Judge summarily dismissed the proceeding with costs.
APPLICATION FOR LEAVE TO APPEAL TO THE FEDERAL COURT
The decision of the primary Judge was an interlocutory decision and the applicant requires leave to appeal that decision.
Mr Shetty filed an application for leave on 31 December 2018. In that application under the heading “grounds of application” he set out a detailed summary of his case. Then, under the heading “Grounds of Appeal” he set out a summary of events in the Federal Circuit Court, intermingling accusations of victimhood and absence of natural justice with a complaint about proceedings in the Tribunal.
To the extent that it is possible to glean grounds for leave to appeal from Mr Shetty’s application, they appear to be as follows:
(a)The primary Judge failed to look at his claims and prevented him from giving proper evidence.
(b)The primary judge erred in not finding that the Tribunal misguided him during the hearing.
(c)The primary judge erred in failing to find that the Tribunal breached its duty to assess his exceptional circumstances surrounding his enrolment.
(d)The primary judge failed to find that the Tribunal breached its obligations in respect of the request for him to undergo a medical examination.
Mr Shetty submits that there was a lack of discussion regarding his circumstances at the Federal Circuit Court hearing.
Mr Shetty seeks that the appeal be allowed with no order for costs and additionally that the decision made by the Tribunal be reviewed.
The Minister seeks that the application for leave be dismissed and the applicant pay the costs of the first respondent.
CONSIDERATION
At the hearing today I summarised the above points (a)-(d) as being what I understood to be Mr Shetty’s grounds for leave to appeal. Mr Shetty agreed that this was an accurate summary. I invited him to make further oral submissions in the absence of written submissions filed by him, however he said he had nothing further to add.
Mr Kyranis for the Minister submitted that the Minister was content to rely on filed written submissions in circumstances where Mr Shetty had made no further oral submissions.
In considering whether the Court should grant leave to appeal, the Court must be satisfied that there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration, and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [398-399].
Rule 44.12 of the FCC Rules which was applied by the primary Judge provides:
Show cause hearing
(1) At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or
(b)if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
The primary Judge’s decision to dismiss the application was an exercise of discretionary power by his Honour under r 44.12(1)(a). A challenge to that decision requires the identification of an appealable error of the type canvassed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 at [21] per Griffiths J.
To substantiate a grant of leave by this Court against the decision of His Honour, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had shown cause, the primary Judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration or had reached a result that was simply unreasonable or unjust: House v The King (1936) 55 CLR 499 at 504-505.
The decision of the Tribunal addressed the applicant’s circumstances. With respect to that decision, the primary Judge carefully examined the applicant’s claims in the context of the show cause procedure prescribed by the FCC Rules. His Honour found that the applicant had not advanced arguments which warranted findings in his favour and accordingly, there was no basis on which His Honour should exercise his discretion by not summarily dismissing the proceedings.
The applicant was required to establish sufficient doubt as to the correctness of the primary Judge’s findings and related exercise of discretion against the applicant, so that the applicant be granted leave to appeal.
I am satisfied no such sufficient doubt exists as to His Honour’s findings, or the decision to summarily dismiss the proceedings. Further, I do not accept that the primary Judge failed to look at Mr Shetty’s claims, and there is no evidence before the Court that the primary Judge prevented Mr Shetty giving proper evidence such that Mr Shetty was denied natural justice. The basis on which Mr Shetty claims that the Tribunal misguided him during the hearing is not clear, or reasons his Honour allegedly erred in failing to find that the Tribunal so misguided him.
To the extent that Mr Shetty claims that the Tribunal failed to properly assess his “exceptional circumstances”, this appears to be an invitation to consider the merits of Mr Shetty’s case, which is impermissible.
Finally, it is unclear how the Tribunal breached its obligations in respect of the request for him to undergo a medical examination. Such evidence as is before the Court indicates that Mr Shetty was aware of his obligations to undergo medical assessment (Tribunal reasons [22]). Any error about this is not evident.
The appropriate order is to dismiss the application for leave to appeal, with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 5 July 2019
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