Vemuri v Minister for Immigration

[2014] FCCA 1782

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEMURI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1782

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of  jurisdictional error.

Legislation:

Migration Regulations 1994

Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18

Applicant: HARSHA VARDHAN VEMURI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1536 of 2013

Judgment of: Judge Driver

Hearing date: 5 August 2014

Delivered at: Melbourne

Delivered on: 5 August 2014

REPRESENTATION

Solicitors for the Applicant: Applicant In Person

Solicitors for the Respondents: Mr Hornsby – Sparke Helmore

INTERLOCUTORY ORDERS

1. The application filed on 18 September 2013 be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

2. The Applicant shall pay the First Respondent’s costs and disbursements of and incidental to the application in the sum of $3,326.00, in accordance with the Court rules and scale.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1536 of 2013

HARSHA VARDHAN VEMURI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Migration Review Tribunal.  The decision was made on 23 August 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a temporary student visa. Background information concerning the applicant’s visa application and the decision of the Tribunal on it is set out in the Minister’s outline of submissions filed on 29 July 2014. 

2. On June 2011, the Applicant, a citizen of India, applied to the Department of Immigration and Citizenship (as it then was) (“the Department”) for the visa[1].

   [1] Court Book (CB) 1 - 17

3. The primary criteria to be satisfied at the time of decision for the grant of a subclass 572 visa included that the Applicant meet the requirements of cl.572.223, cl.572.224 and cl.572.225 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. Pursuant to cl.572.223(2)(a)(i), the Applicant was required to provide evidence in accordance with the requirements mentioned in Schedule 5A of the Regulations for the highest relevant assessment level applicable to him. The phrase assessment level is defined under reg.1.03 as being the level of assessment specified under reg.1.41 of the Regulations which in turn provides that the Minister must specify by Gazette Notice the relevant assessment level. The relevant Gazette Notice was IMMI 11/011, which specified that the relevant assessment level in respect of a subclass 572 visa where the applicant was from India was level 4. Relevantly, cl.5A405 required the Applicant to provide evidence of his financial capacity.

5. On 19 November 2011, a delegate of the Minister refused to grant the visa. The delegate found that the Applicant had not provided evidence that he met the relevant Schedule 5A requirements (namely, the English proficiency and financial capacity requirements), had the requisite health insurance, had substantially complied with the conditions of his last visa or that he had undertaken the requisite medical assessments (required by PIC 4005). Accordingly, the delegate found that the Applicant did not satisfy cl.572.223(2)(a)(i), cl.572.225, cl.572.235 and cl.572.224 of the Regulations[2].

   [2] CB 22 - 35

Tribunal Proceedings

1. On 21 December 2011, the Applicant applied to the Tribunal for review of the delegate’s decision[3].

   [3] CB 36 - 42

2. On 23 July 2013, the Tribunal wrote to inform the Applicant that it had considered the material but was unable to make a favourable decision on that material alone. It invited him to provide further information and to attend a hearing on 19 August 2013[4].

   [4] CB 49 - 52

3. No response to the invitation was received and the Applicant did not appear at the scheduled hearing before the Tribunal at 9:00am on 19 August 2013[5].

   [5] CB 61 - 53

4. On 19 August 2013, at approximately 4:30pm, the Applicant telephoned the Tribunal to inform it that he was unable to attend the hearing because he was unwell and to request a postponement of the hearing in order to submit evidence. The Applicant emailed this request to the Tribunal’s Victorian Registry[6].

   [6] CB 65

5. On 20 August 2013, the Tribunal declined the Applicant’s request for a postponement of the hearing, on the basis that the Applicant had not provided any medical or other evidence in support of his claimed inability to attend the hearing and had only contacted the Tribunal near the end of the day of the scheduled hearing[7].  The Tribunal indicated, however, that it would not make a decision until 5:00pm on 22 August 2013 and that it would consider any evidence provide by the Applicant before that time. This was communicated to the Applicant via telephone and email[8].  The Tribunal did not receive any further material or correspondence from the applicant.

   [7] CB 79 - 80

   [8] CB 66 - 67

Tribunal Decision

1. By letter dated 27 August 2013, the Tribunal notified the Applicant of its decision, dated 23 August 2013, to affirm the delegate’s decision[9].

   [9] CB 69 - 81

2. The Tribunal found that the relevant subclass of visa was Subclass 572 on the basis that the Applicant was enrolled in an advanced diploma course. The Tribunal also found that the relevant assessment level for the Applicant, an Indian passport holder, was Assessment Level 4[10].

   [10] CB 80

3. The Tribunal found that the Applicant had failed to give evidence, in accordance with the financial capacity requirements in Schedule 5A. Accordingly, the Tribunal found that the Applicant did not satisfy the requirements of cl.572.223(2)(a)(i). The Tribunal also found that the Applicant had failed to provide any evidence for the purposes of satisfying cl.572.224 (namely, that he satisfied PIC 4005) and cl.572.225 (the health insurance requirement). Accordingly, the Tribunal found that the Applicant did not satisfy cl.572.223, cl.572.224 and cl.572.225[11].

   [11] CB 80 [29]-[30]

4. These proceedings began with a show cause application filed on 18 September 2013.  That application contains three grounds:

   1. S.477, Judicial review can be lodged after 35 days after review has been finalised.

   2. I am not happy with tribunal decision, applying for judicial review for legitimate decision.

   3. I do have exceptional circumstances beyond the application lodgement previously. 

5. The application is supported by a short affidavit filed with it which I received as a submission.  I received the court book filed on 21 October 2013 as evidence. 

6. The applicant initially failed to appear for today’s hearing.  The Minister’s solicitor tendered as an exhibit[12], correspondence dated 29 July 2014 to the applicant in support of a likely application for dismissal because of that non-appearance.  However, the court was successful in contacting the applicant by telephone with the assistance of the interpreter.  It transpired that the applicant had been delayed.  The hearing proceeded after the applicant arrived at court and the interpreter had read to the applicant the Minister’s outline of written submissions. 

   [12] Exhibit R1

7. I invited oral submissions from the applicant, but he did not want to make any. The Minister relied upon his written submissions.  The grounds in the application do not support any arguable case for jurisdictional error.  Ground 1 does not bear upon any issue as the applicant did not require an extension of time for his application to the Court.  Grounds 2 and 3, to the extent that they bear on anything, bear on the merits of the Tribunal decision.  On the basis of the material before me, I am confident that the only possible legal issue in this case is the issue of whether the Tribunal should have adjourned the review on being advised that the applicant was unwell.  In paragraph 20 of its reasons[13], the Tribunal records that the applicant failed to appear at the hearing before the Tribunal to which he had been invited. 

   [13] CB 79

8. At [21], the Tribunal records that the applicant telephoned the Tribunal at 4.30 pm on the day of the hearing to say that he failed to attend because he was unwell.  He requested a further hearing to be scheduled and indicated that he wished to submit evidence.  The Tribunal officer who took the call gave the applicant an email address to which to send any evidence and advised him to submit any evidence as soon as possible.  A few minutes later, the applicant sent an email stating that he failed to attend the hearing in the morning because he was not feeling well and stating that he had an appointment with his doctor. 

9. At [22] of its reasons, the Tribunal records that, the following day, a Tribunal officer telephoned the applicant to tell him his request for a further hearing had been declined by the presiding member.  But partway through the call, the Tribunal officer was diverted to a text facility.  Tribunal officer left her name and telephone number, but there was no return call.  At [23], the Tribunal records that, later on the same day, the officer sent an email to the applicant’s nominated email address and advised him of the purpose of her call earlier.  She confirmed her oral advice that the applicant’s request for a further hearing had been declined, but also advised that the applicant would have until 22 August 2013 to submit further evidence.  The officer confirmed that the email transmission was apparently successful. 

10. The Tribunal records at [24] of its decision that no further material had been received by 23 August 2013.  At [25] the Tribunal concluded[14]: 

    The Tribunal considered whether to take further action before proceeding to make a decision on the review. The Tribunal has taken all steps available to it to offer the applicant the opportunity to appear before it and to provide evidence in relation to the review. The applicant has not taken these opportunities. The Tribunal considered his request for a further hearing and declined to schedule a further hearing as the applicant did not provide any medical or other supporting evidence relating to his claimed inability to attend and only contacted the Tribunal near the end of the business day of the scheduled hearing. The Tribunal will therefore proceed to making a decision in accordance with s.362B of the Act.

    [14] CB 79 - 80

11. In my view, in the circumstances of this matter, the Tribunal’s decision not to adjourn the review was not unreasonable in any legal sense.  I agree with the Minister’s submission in that regard.

12. The Tribunal’s findings were open on the material and no error is apparent in its decision or approach. The Tribunal gave adequate reasons for refusing the Applicant’s request for a postponed hearing date[15]. Accordingly, the Tribunal’s decision not to grant the Applicant a postponement of the hearing was not unreasonable in the sense considered by the High Court in Li[16].

    [15] CB 79 – 80 [25]

    [16] Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18

13. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

14. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant did not wish to be heard on costs. I will order that the applicant pay the Minister’s costs and distributions of all incidental for the application in the sum of $3,326.00 in accordance with the Court scale and Rules.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 7 August 2014