Taunque v Minister for Immigration - [2005] FMCA 1400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAUNQUE v MINISTER FOR IMMIGRATION

[2005] FMCA 1400

MIGRATION – Student visa – Migration Review Tribunal.

PRACTICE AND PROCEDURE – Decision dismissing application in absence of Applicant – whether decision should be set aside Rule 16.05 – whether reason given for absence – use of postal address – applicant not living at address.

Federal Magistrates Court Rules 2001, r.1605

Applicant:

HARMIT SINGH TAUNQUE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1398 of 2004

Judgment of:

McInnis FM

Hearing date:

9 September 2005

Delivered at:

Melbourne

Delivered on:

9 September 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms S Burchell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 29 August 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs of and incidental to the application fixed in the sum of $600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1398 of 2004

HARMIT SINGH TAUNQUE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by the applicant seeking to set aside a decision made by this Court dated 12 August 2005. The application seeking to set aside the order is made pursuant to Rule 16.05, sub-rule (2)(a) of the Federal Magistrates Court Rules 2001 (the Rules). The rules provide that the Court may set aside an order that's been entered if the order is made in the absence of a party. There's no doubt that in this case the order that was made on 12 August 2005 was made in the absence of the applicant. In fact the order specifically refers to Rule 13.03A(c) of the rules which provides a power to the Court to dismiss an application if the party is absent.
The applicant, in support of his application to set aside the order, has relied upon an affidavit sworn by him on 29 August 2005. He has otherwise given evidence before this Court to explain why he did not attend court on 12 August 2005. It's relevant to note in the context of this application that the hearing date of 12 August 2005 was fixed by the Court at a directions hearing which occurred on 15 December 2004. It should also be noted that prior to that date, by notice of solicitor ceasing to act, a firm of solicitors previously on record acting for and on behalf of the applicant indicated that it had ceased to act for the applicant. That notice, dated 6 December 2004, filed on 8 December 2004, annexes to it an address for the applicant, namely 3/23 Power Street, Hawthorn, Victoria, 3122 (the applicant's address).
In his evidence the applicant indicated that that is indeed his postal address, though further indicated that he does not always reside at that address. He confirmed however that it has remained since that date his correct postal address. Unfortunately the notice of listing forwarded by Registry in this matter, which appears on the court file dated

23 December 2004, was forwarded to the applicant's former solicitors. Accordingly, if the material before the Court was constituted solely by that document, then clearly there would appear to be an error made by Registry in forwarding the notice of listing to the incorrect address, even though one might presume in normal circumstances that solicitors formally acting for an applicant would indeed forward a notice of listing to their former client.
Nevertheless, there is other material, both in terms of correspondence and evidence from the applicant himself, which confirm, and I find as follows:
·The applicant attended in person on the day when the orders were made by the Registrar fixing the application for final hearing on 12 August 2005.
·
At that hearing before the Registrar, which occurred on

15 December 2004, a number of orders were made in addition to the order being made that the matter be listed for hearing on 12 August 2005 at 2.15 pm.
·Two of those orders which affected the applicant, namely, a requirement that he file and serve an amended application with proper particulars on or before 25 February 2005 and file and serve contentions of fact and law by 17 March 2005, were in fact complied with, albeit out of time to some extent with the applicant's amended application and statement of contentions of fact and law being both filed on 24 March 2005.
In his evidence the applicant said that notwithstanding his attendance at court before the Registrar on 15 December 2004, he did not fully appreciate or understand that the matter was listed for 12 August 2005, but rather, claimed that it was his understanding the matter had been listed for hearing on 22 August 2005. Essentially it was based upon that misunderstanding he claims he did not attend the hearing.
However, the Court also has evidence that a letter dated 24 December 2004 was forwarded by the respondent's solicitors to the applicant at the applicant's address. The applicant in evidence agreed that he received that letter shortly after 24 December 2004. That letter enclosed a copy of the sealed orders made by the Registrar on

15 December 2004. In brief terms, that letter did what unfortunately was not done by Registry, that is, addressed the correspondence to the correct address for the applicant, and, more importantly, enclosed the sealed copy of the orders made by the Registrar which clearly indicated the date for the hearing.
I find that the applicant received that letter, and at least from early 2005 ought reasonably to have been aware that the Court hearing date was 12 August 2005. It is noted that apart from the filing of the amended application and the applicant's contentions of fact and law that he then did not file this application to set aside the orders made in his absence until 29 August 2005, yet he has agreed in evidence that he did receive a sealed copy of the orders made by this Court soon after 12 August 2005.
In his evidence the applicant has explained that he did not always reside at the address which he described at one point as being his ‘postal address’ in Power Street, Hawthorn.
Where an applicant has an application before this Court it is my view that it is the applicant's responsibility to ensure that proper arrangements are made to receive mail which might be relevant to the proceedings. In this case, it appears on the evidence before me that although the applicant may not have resided at what I have described as the applicant's address throughout he clearly did make arrangements to be notified of correspondence. So much is clear from the correspondence from the Court that he claims to have been told about by another person residing at the relevant address shortly after it was received. That is, shortly after 12 August 2005.
It is further clear that he did in fact receive the letter from the Australian Government Solicitor's office dated 24 December 2004 which again was forwarded to the applicant's address and which he received shortly thereafter. In this case, therefore, he clearly has made appropriate arrangements for mail to be forwarded to him, and indeed has received the relevant mail.
That raises the question in this case as to whether or not an applicant who is present at the time an order is made fixing the matter for hearing on 12 August 2005 who thereafter receives, albeit from the respondent's solicitors, a sealed copy of the order confirming the hearing date, being 12 August 2005, and who then in compliance with other orders made the same day files relevant documents, should be given the opportunity to set aside orders made in his absence.
In my view, the evidence of the applicant in relation to misunderstanding the date is not evidence upon which I would be prepared to rely. It seems to me that the more likely explanation is that the applicant did not try to attend court on the scheduled day and did not even after being given notice of the orders made on 12 August make any prompt endeavour to seek to set aside the orders. In my view, the material that I have considered does not provide any or any proper basis upon which this Court could conclude that there is any reasonable excuse for the applicant's non-appearance on 12 August 2005.
If, however, I'm incorrect in reaching that conclusion, and if the Court were to accept the evidence of the applicant providing a basis upon which it would conclude that there is a reasonable explanation for non-appearance, it further remains appropriate for the Court in an application of this kind to consider whether there is indeed an arguable case.
The applicant has relied upon contentions of fact and law filed 24 March 2005 in support of his amended application filed the same date. To understand the nature of his application as amended it is appropriate to note that the application seeks review of a decision of the Migration Review Tribunal (the MRT) made on 30 September 2004. That decision affirmed a decision of a delegate of the respondent to refuse to grant the applicant a temporary class TU student visa.
By way of background, it's noted that the applicant was born on 17 April 1981 and is a male citizen of India who arrived in Australia on 12 July 1999, travelling on a student temporary class TU visa, subclass 560. On 9 May 2002 he was granted a student temporary visa class TU subclass 573 visa which was valid until 30 August 2003. The visa contained a condition described as condition 8202. On 30 August 2003 the applicant applied for a further subclass 573 visa to complete a Bachelor of Information Technology course at Central Queensland University (CQU) from 10 November 2003 to 31 July 2004.
At the time of the lodging of the application with the department the applicant was requested to provide a letter from a specialist doctor stating what treatment he had received during his stay in Australia. That issue was particularly relevant at the time as the applicant had claimed to have suffered from a skin condition, which in part was the basis upon which he further claimed to explain poor academic results which had been set out in what is described as an unofficial transcript of results of study from CQU.
It's not necessary for the Court to consider in detail all the material sought to be relied upon by the applicant, either before the delegate or indeed before the Tribunal, though it is noted that the applicant had sought to rely upon confirmation of enrolment from CQU for the course commencing 10 November 2003 to 31 July 2004. He further sought to rely upon a medical report from Dr Nalvarni dated 18 July 2003, which in part refers to a skin rash suffered by the applicant, "As from March 2003". The same document refers to the applicant having an appointment to see a specialist, namely, a "dermatologist".
The applicant further provided an unofficial transcript of results from CQU. A delegate of the respondent refused to grant the visa on 26 September 2003 on the ground that the delegate was not satisfied the applicant had complied with the condition of the previous visa.

It was after that decision that the applicant then applied to the MRT for review of the delegate's decision.
It's noted in the material before this Court that the decision record of the delegate dated 26 September 2003 refers to the request in writing made to the applicant on 30 August 2003 to provide a letter from a specialist that states that treatment is required in Australia for his skin condition. The delegate notes, "No such letter was supplied at the interview". When questioned about this the student advised that he was unable to obtain such a letter from the dermatologist.
In the material before this Court it is clear that there were two issues agitated by the applicant, one related to his skin condition and another was an issue concerning the accuracy of what I've described as the unofficial academic results. Those matters were both agitated before the MRT, and indeed in relation to the academic results it is clear from the MRT decision that it then pursued those issues, and specifically it pursued the issue of the inaccurate academic results.
It sought further information from CQU, and ultimately concluded that although there was a reference by the applicant to two subjects which he claimed he passed and where there was a record of fail that the matter was clarified to the extent that there was certainly an error in relation to one of those subjects and that accordingly a fail should have been recorded as a pass.
In relation to the second issue concerning the skin condition of the applicant the Tribunal in paragraph 18 of its decision refers to that material in some detail. It refers to the medical certificate provided by the doctor to which I referred to earlier in this judgment. It refers to the lack of an expert specialist opinion. In its findings the Tribunal significantly states the following in paragraph 29 of its decision:
In respect of his poor academic performance the visa applicant has stated that this was entirely due to his skin condition which he said prevented him from attending university. He has submitted a brief medical report from his general practitioner but no specialist dermatologist medical opinion despite being requested to provide this by both the delegate and the Tribunal. His general practitioner states in the certificate that the review applicant had suffered from the condition since March 2003 which does not explain the review applicant's unsatisfactory results in 2002. The Tribunal does not accept the visa applicant's oral evidence that he had in fact suffered from the rash for 6 months before March 2003 when he failed to provide any medical evidence of this. Whilst he deferred his studies on 29 August 2003 this was one day before the expiration of his last student visa and therefore not relevant to the period which the Tribunal must consider.”
The Tribunal goes on to state:
“In these circumstances and based on the limited medical evidence before it, the Tribunal does not consider that the visa applicant has complied substantially with condition 8202. On balance the Tribunal finds that the visa applicant has not complied substantially with the conditions to which his previous visa was subject. The Tribunal therefore finds that the visa applicant does not meet clauses 572.212 and 572.226.”
In the amended application and the contentions of fact and law relied upon by the applicant it is clear, in my view, that the applicant whilst claiming that there has been an error of law effectively seeks to agitate the facts of the matter or to invite the Court to revisit the matter by way of merit review, which, of course, is inappropriate in an application of this kind. He seeks to explain the failure to provide the report of the dermatologist and seeks to otherwise refer to findings made by the Tribunal with which he disagrees.
The MRT in considering condition 8202 and otherwise considering the relevant regulations, in my view, does not appear to have made any error. Further, in considering the facts and circumstances of the applicant which he had presented to the Tribunal I do not detect any error of law of a kind which would constitute jurisdictional error in an application of this type of a sufficient nature to allow the application.
In my view, on a proper reading of the material there is little more in this case than an attempt by the applicant to provide further factual material in support of his claims which were properly dealt with by the Tribunal which in fact made a factual assessment involving no error of law. It is clear on the material before me that there is no jurisdictional error evident, and nor is there any material upon which this Court could be satisfied that there is indeed an arguable case.
Having found that there is no arguable case even if the Court were minded to accept, as it does not accept, that there is a reasonable explanation for non-appearance on 12 August 2005, the Court will in any event otherwise dismiss the application to set aside the order made on that date on the ground that there is no arguable case for the reasons stated. It follows therefore that the application filed on 29 August 2005 should be dismissed and that the applicant should pay the respondent's costs of and incidental to that application which I shall fix in the sum of $1500.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 September 2005