Sivaprakasam v Minister for Immigration

[2014] FCCA 935

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIVAPRAKASAM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 935

Catchwords:
MIGRATION – Review of Migration Review Tribunal – student visa – no matter of principle – application dismissed.

Cases Cited:
Minister for Immigration v Li (2013) 87 ALJR 618

Applicant: BINOSH SIVAPRAKASAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 9 of 2013

Judgment of: Judge Riethmuller

Hearing date: 18 March 2014

Date of Last Submission: 18 March 2014

Delivered at: Melbourne

Delivered on: 18 March 2014

REPRESENTATION

Counsel for the Applicant: Mr B. Sivaprakasam in person

Counsel for the Respondent: Mr Wood

Solicitor for the Respondent:

ORDERS

1. The Application for reinstatement filed on 14 February 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $2,861.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 9 of 2013

BINOSH SIVAPRAKASAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside orders dismissing the applicant’s principal application as a result of his failure to appear. 

2. The applicant originally sought judicial review of a decision of the Migration Review Tribunal, affirming a decision to refuse him a student visa. 

3. The applicant first applied for his student visa on 28 February 2011.  A delegate of the Minister refused to grant a student visa on 6 June 2011.  On 29 June 2011, the applicant applied for review to the Migration Review Tribunal.  The applicant had a hearing before the tribunal in December of 2012. 

4. On 9 November the tribunal wrote to the applicant, telling him that on the papers that had been filed it couldn’t find in his favour, and invited him to attend for a personal hearing one month later on 11 December.  The applicant was asked to bring evidence to show that he was enrolled or had an offer of enrolment for a course.  When the applicant came to his hearing before the tribunal, he had no evidence that he was currently enrolled in a course of study, nor any evidence that he had an offer of enrolment.  He told the tribunal he was not enrolled in a course of study and he told them that he did not have an offer of enrolment in a course of study.  The applicant then sought an adjournment of the hearing. 

5. The applicant had had 18 months to ensure that he had either an enrolment or offer of enrolment in order to obtain a student visa.  The applicant had had a month since the letter from the tribunal (where the tribunal asked for evidence of an enrolment) to seek out an educational institution to enrol or to commence the enrolment process.  The applicant had not done so.  Even today, the applicant is not able to show any enrolment or application to enrol.

6. The submissions by counsel for the Minister at paragraph 16 fairly sum up the situation:

   16. The circumstances of the refusal to adjourn in Li, and the refusal in this case, are strikingly different. First, in this case, there was no “good reason to suspect that the [relevant criteria] would be met” – the applicant had not “shown the MRT that there was a proper basis for expecting a favourable outcome” if an adjournment was granted. Secondly, there was no specific allegation of error or default by a third party giving rise to a “need” for time to correcting evidence. Rather, the adjournment request contained only the general and vague assertion that the applicant was “waiting” for additional (unspecified) documents: the applicant gave no indication of what those documents were, what steps he had taken to obtain them, and when. Thirdly, the applicant did not “promptly” seek an adjournment after realising the “issue”: the applicant did not request an adjournment until 6 days before the scheduled hearing. Fourthly, the period for which an adjournment was sought (“at least 3 months”) was length, indefinite and apparently arbitrary, rather than defined by reference to a specific anticipated future event.

7. On the material before me, it does not appear to me that the applicant has an arguable case. 

8. Turning to the question of his reasons for not attending court on the previous occasion, he simply says that he was ill with kidney problems.  He did not call an ambulance.  He takes medication that he says he brought with him from India.  He did not telephone the court or the Minister’s lawyers on the day.  On the limited material before me, I am not persuaded that he has demonstrated a good excuse for not attending, when it is taken in the context of the fact that he had not complied with previous directions of the court. 

9. If he is not allowed to reopen the case, there will be some prejudice.  Although, with respect to a student visa, there is no reason that he couldn’t commence a student visa application again.  Ultimately, however, as the applicant does not appear to me to have an arguable case, there would be no purpose in reinstating these proceedings.  In the circumstances, I therefore refuse the application. 

10. The Minister seeks costs.  The Minister was entirely successful.  Costs ordinarily follow the event.  Poverty is not a basis for not ordering costs.  The Minister seeks costs in the sum of $3326 on the basis of part 3, division 1, item 2 of the schedule 1 of the costs scale.  It appears to me that that contemplates a migration proceeding in the ordinary course from an application through to the time described in that item. 

11. This is a separate interlocutory application and it seems to me more appropriately assessed upon the scale in part 1 at item 3 and item 13.  Item 3, the fee is $1661 for the solicitors, which I would allow.  Item 13 is $997 plus advocacy loading of up to 50 per cent.  The fee on brief in this matter was $1200, less than the scale at item 13.  I would allow that amount making a total of $2,861. 

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

Associate: 

Date:  8 May 2014