Suriyamanee v Minister for Immigration

[2013] FCCA 179

FEDERAL CIRCUIT COURT OF AUSTRALIA

SURIYAMANEE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 179

Catchwords:
MIGRATION –Migration Review Tribunal

PRACTICE & PROCEDURE – Applicant’s application pursuant to rule 16.05 of Federal Circuit Court Rules 2001 (Cth) to set aside earlier order dismissing judicial review application by reason of applicant’s failure to attend scheduled hearing – whether explanation satisfactory – whether reasonable prospects of success – application refused.

Legislation:
Migration Regulations 1994 (Cth) reg.572.211
Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 16.05

Suriyamanee v Minister for Immigration and Citizenship & Anor [2012] FMCA 1230

Applicant: NIDAPHAN SURIYAMANEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1855 of 2012

Judgment of: Judge Emmett

Hearing date: 2 May 2013

Date of Last Submission: 2 May 2013

Delivered at: Sydney

Delivered on: 2 May 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitors for the first Respondent: Clayton Utz

Solicitors for the second Respondent: Clayton Utz

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1855 of 2012

NIDAPHAN SURIYAMANEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is the applicant’s Application in a Case made pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), filed on 24 December 2012, seeking to set aside orders made by the Court on 13 December 2012. Those orders dismissed the applicant’s substantive proceeding for judicial review of a decision of the Migration Review Tribunal, dated 27 July 2012, by reason of the failure of the applicant to appear at the scheduled hearing. Rule 13.03C(1)(c) of the Rules provides that in the event that an applicant in a proceeding is absent from a hearing, the Court may dismiss the application.

2. On that occasion, the Court gave reasons for dismissing the applicant’s proceeding (Suriyamanee v Minister for Immigration and Citizenship & Anor [2012] FMCA 1230). They were first that the applicant had failed to appear at the scheduled hearing; and secondly that in considering the grounds provided by the applicant, the Court found that they were not particularised and did not disclose any ground capable of review by the Court.

3. At the commencement of today’s hearing, the applicant was reminded of the reasons for the dismissal of her application on 13 December 2012. I explained to the applicant was informed that the Court had the power to set aside the orders made in dismissing those proceedings, and that the matters relevant in doing so would be:

   a)The applicant’s explanation for failing to attend the hearing; and

   b)Whether there was any utility in setting aside the orders made, in that the application had sufficient prospects of success that it would be in the interests of justice to do so.

4. The applicant relied on her affidavit, filed 24 December 2012, as an explanation for her failure to attend the scheduled hearing on 13 December 2012. That affidavit stated that a letter, sent on 7 December 2012 relisting the matter for hearing on 13 December 2012, was not received by the applicant until 14 December 2012.

5. The solicitor for the first respondent, Mr Jones, did not wish to cross examine the applicant on the contents of her affidavit.

6. The letter, dated 7 December 2012, was sent to the address identified by the applicant on her application. In my view, it provided more than sufficient notice of the relisting of the matter for hearing. In any event, the affidavit provided no explanation as to how it could be that the applicant did not receive the letter at that address, or the circumstances in which she did not receive it until after the day of the hearing.

7. I asked the applicant if she lived at the address identified in her application. The applicant replied that she did not, and that “her lawyers” lived at that address. I asked the name of the person who is at that address, the applicant responded that it was her “friend’s mother’s office address”. I asked the applicant what her friend or her friend’s mother’s name was, to which the applicant replied that she did not remember. I then asked the applicant which of them was her lawyer, to which the applicant responded that she did not remember the name of her lawyer. These were plainly unsatisfactory responses to the Court’s questions. The applicant then provided updated contact details.

8. In the circumstances, I do not accept as reasonable the applicant’s explanation for her failure to attend the hearing of 13 December 2012.

9. On the question of whether the applicant’s application has sufficient prospects of success such that it is in the interests of justice for the Court to set aside the order made on 13 December 2012, the applicant relied on the grounds of her original application and had nothing further to say. I refer to the reasons given by me on 13 December 2012 in considering the applicant’s grounds:

   “7. The grounds of the application filed on 27 August 2012 are in the following terms:

   “1. I should get back my visa as I am a student in Australia.

   2. My visa was refused on the basis that my application was made after 28 days of ceasing my substantive visa. But that time the situation was beyond my control as I was going through emotional depression due to my father’s death.

   3. The Tribunal did not look into the compelling and compassionate reasons.”

   8. The applicant also filed an affidavit on 27 August 2012 annexing a copy of the decision of the Refugee Review Tribunal dated 27 July 2012 (“the Tribunal”).

   9. The grounds make bare assertions, unsupported by particulars, and do not on their face disclose an error capable of review by this Court. It would appear that the Tribunal affirmed the decision on the review on the basis that it had no jurisdiction to review a decision of the delegate, because the application to the Tribunal was not made within the statutory period of 28 days after the applicant’s visa ceased to be in effect. Once a matter is filed outside the 28 day statutory period, it would appear that there is no residual discretion in the Tribunal to extend time for compelling and compassionate reasons. In the circumstances, the grounds of the application do not appear to have any or any reasonable prospects of success.”

10. In opposing the application, the first respondent referred to cl.572.211(3) of the Migration Regulations 1994 (Cth) (“the Regulations”). The first respondent submitted that as a result of the operation of this clause, the Migration Review Tribunal had no discretion to consider the visa application of the applicant in circumstances where the application for review was made after the 28 day period from which the original visa ceased to be in effect. The applicant was invited to respond, and stated that she would like the court to reconsider her claim as she wished to stay in Australia, and that she realised that she was wrong, but had failed to remember the date on which her visa was due to expire.   

11. The applicant had been the holder of a subclass 572 student visa that had ceased on 26 March 2011. Pursuant to cl.572.211(3) of the Regulations, the applicant was required to lodge a further application within 28 days after the day when her student visa ceased. The applicant lodged an application for a visa on 25 May 2011, plainly in excess of the 28 days required by the Regulations.

12. In the circumstances, it would appear that there was no residual power to extend the time to the applicant to lodge her visa application, and no error is apparent on the face of the Tribunal’s decision record in its application of the law to the applicant’s complaints.

13. The applicant has not identified today any further reason why the decision of the Tribunal may be affected by jurisdictional error.

14. In the circumstances, I am not satisfied that the applicant has sufficient prospects of success, or in fact any prospects of success, such that the orders of the Court made on 13 December 2012 should be set aside.

15. Accordingly, the Application in a Case, filed on 24 December 2012, is dismissed with costs.

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

Date:  14 May 2013