Yogesh v Minister For Immigration and Anor (No.2)

[2014] FCCA 1764

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOGESH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 1764

Catchwords:
MIGRATION – Application to reinstate application dismissed for non-attendance of the applicant – medical evidence and explanation for non-attendance unsatisfactory – applicant’s prospects of success if matter reinstated considered – application dismissed.

Legislation:
Migration Act 1958

Migration Regulations 1994
Federal Circuit Court Rules 2001, r.16.05

Applicant: YOGESH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1304 of 2013

Judgment of: Judge Burchardt

Hearing date: 25 July 2014

Date of Last Submission: 25 July 2014

Delivered at: Melbourne

Delivered on: 14 August 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Wende

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The applicant’s application to reinstate his application pursuant to r.16.05 of the Federal Circuit Court Rules 2001 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1304 of 2013

YOGESH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 19 August 2013, the applicant filed an application for review of a decision of the Migration Review Tribunal, which affirmed the decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) Visa.

2. The grounds specified in the application are set out as follows:

   “No natural justice was practice.  I state that the Tribunal failed to look into the facts of my application and made a hasty decision and refused my application.

   I wish to state that the Tribunal has not given any importance to the facts in documents provided by me, which was very important for deciding my application.

   I state that the Tribunal was in haste and made an unfair decision taking irrelevant facts into consideration only purpose to refuse my application.”

3. An affidavit sworn in support of the application relevantly says:

   “Tribunal has refused my application without giving an opportunity.  There was no natural justice has followed and they failed to look into the facts in my application.”

4. Despite being given an opportunity by orders made by Registrar Caporale on 16 October 2013 to file any amended application and affidavits, the applicant did not do so and the only relevant subsequent document filed in the proceeding, apart from the Court Book (“CB”), was the first respondent’s outline of submissions, to which I will return.

5. On 12 June 2014, the matter came before the Court.  The Court had before it an application for an adjournment made by the applicant and I dealt with that application in ex tempore reasons for judgment given that day, which are on the Court file and which speak for themselves.  Essentially, I noted that the applicant’s adjournment request relied upon a medical certificate which read:

   “THIS IS TO CERTIFY THAT Mr Yogesh Yogesh has a medical condition and will be unfit for work and general activities from 12/06/2014 to 13/06/2014 inclusive.”

6. I was referred to two authorities of the Federal Court dealing with similar and relevantly undifferentiable circumstances and I was persuaded that it was inappropriate to grant the adjournment. I therefore refused the application for adjournment and dismissed the application for the applicant’s non-attendance.

7. Thereafter, the next relevant event was on 10 July 2014 when the applicant filed, as he was entitled to, an application seeking to set aside the order made in his absence.  That relevantly stated:

   “I state I was unable to attend a such I was not well. the ownerable (sic) court refuse the application for nonappearance. Even though I sent a letter to postpone my hearing.”

8. An affidavit filed in support on the same date states relevantly:

   “I state my application was refused for nonattendance.  as such I was not well.  The ownerable (sic) court feeld (sic) to postpone the matter in the interests of justice.  I had sent a letter to the Court.”

9. The applicant asserted before the Court that he had not received the first respondent’s written submissions and I, therefore, stood the matter down to give him an opportunity to study them.

10. When the matter came on for hearing today, the applicant, who was self-represented, asserted that he was sick at the time of the last hearing.  He had back pain.  He appeared to me to suggest that this back pain had continued for some time and that this explained the delay in his application to set aside.  He said he had been to the doctor two to three times, but he had no medical evidence as to his condition with him.

11. I note that the certificate originally forwarded spoke only of a very temporary absence through ill health, rather than an extended one.  The applicant said he needed more time to find a solicitor.  He said he had been working and trying to find a solicitor who would work for him for free.  This response was given to a question from the Court pointing out that he had had since August last year to obtain legal representation and asking why it had taken him so long.

12. Counsel for the first respondent opposed the application to reinstate.  She submitted that the applicant had not advanced any reasonable excuse for his nonattendance and further, in any event, there was no utility to reinstatement as the applicant’s prospects of success were so poor.  She submitted that the medical certificate originally provided was wholly inadequate.  She then went on to deal with the question of the prospects of success, in the event the matter was to be reinstated.  She referred to the written submissions filed by the first respondent. 

13. Those submissions set out the complaints made by the applicant and the background in terms which seem to me to be uncontroversial.  The applicant actually arrived in Australia on 28 October 2007 on a student visa.  He made a further application for a further student visa on

    
    

    27 September 2011.  That was refused because the delegate found that the applicant had not demonstrated he was a genuine applicant for entry and stay as a student, in circumstances where he could not provide evidence of full-time study between September 2010 and March 2011.

14. The written submissions noted, as is the fact, that the Tribunal wrote to the applicant inviting him to appear at the hearing and that he had, indeed, done so and had provided various documents to the Tribunal prior to the proceeding.

15. The written submissions pointed out that the Tribunal affirmed the delegate’s decision and had stated the issue before it to be “…whether, at the time of decision, the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirement of the Regulations.” (paragraph 6, CB 91).

16. The Tribunal found, at CB 93, that the applicant was not, in fact, enrolled or the subject of a current offer.  Indeed, at paragraph 18, the Tribunal recorded:

    “18.  The applicant said that he was not current enrolled in a registered course nor does he have an offer of enrolment.  The applicant spoke to the CoEs that he has submitted and confirmed that he has not taken up these courses and is not currently studying...”

17. The Tribunal noted that it was open to the applicant to have continued his studies, as his bridging visa did not have a no study condition.  The Tribunal noted that the CoEs were generated on 20 June 2011.  This meant that the applicant was not enrolled in a registered course from September 2010 to June 2011, a period of nine months. 

18. The applicant said that he had not completed any of the courses for which he had submitted CoEs.  The applicant confirmed that he was not currently studying.  The Tribunal noted that until the applicant had a current CoE or an offer of enrolment, it was unable to determine the visa subclass and the applicable assessment level.

19. The applicant said that if he was given the time, he could obtain a CoE.  The Tribunal discussed the chronology of the application and suggested that it was not inclined to grant an extension of time.

20. I note that the Tribunal had considerable doubts as to whether the applicant would satisfy the test of being a genuine applicant for entry and stay as a student in any event (at paragraph 20).  In its findings and reasons at paragraph 22, the Tribunal noted that the applicant had applied for a Class TU Visa for the purpose of study in Australia and that at the time of the decision of the Tribunal, there was no evidence before it that the applicant was currently enrolled in or the subject to a current offer of enrolment in any course of study.

21. The Tribunal said at paragraphs 22-23 that:

    “The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principle course of the type specified for any of the subclasses 570, 571, 572, 573, 574 or 575.  On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations. 

    Additionally, there is no evidence before the Tribunal which suggests that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa.”

22. The Tribunal went on to note the delegate’s finding about the applicant’s genuine entry and stay as a student.  The Tribunal considered that the reasons for the period of non-enrolment between September 2010 and June 2011 offered by the applicant were inconsistent for a person who claimed to be a genuine applicant. 

23. The Tribunal, therefore, noted that while it shared the delegate’s doubts, the fact was there was no evidence for the applicant satisfying any of the relevant subclasses of these Student (Temporary) (Class TU) visas or subclasses and, accordingly, dismissed the application.

24. Counsel for the Minister had submitted that the applicant’s opportunity to present material to the Tribunal and his attendance at the hearing meant that there was no natural justice point.  The applicant repeated, following the adjournment to read the Minister’s submissions, that he was not able to provide evidence of study between September 2010 and March 2011.  As I understood it, what he had to say was to the effect that he could not enrol in September because he was only entitled to do full courses which commenced in the New Year.  He was waiting, in effect, for a course to become available.

25. He further said he stopped studying again because he was not sure he would get a visa but wanted a visa now to finish his studies.

26. In these circumstances there are two conclusions the Court has reached.  The first is that the applicant’s explanation for his non-attendance has not been improved by the passage of time.  The medical evidence provided was insufficient and the applicant has had a month to obtain more telling information were it available.  His assertions as to further ill health on a more or lengthy basis is not supported by any medical evidence and is, on its face, inconsistent with the medical certificate originally issued.  I regard the explanation given for non-attendance as, at the very least, scarcely compelling. 

27. More importantly, however, there is no utility to reinstating the applicant’s application.  He plainly did not meet any of the subclasses of the visa that he sought at the time the Tribunal considered the matter.  The Tribunal declined to give the applicant further time to seek to do so and, in the circumstances, where he has been in Australia for seven years and, it would appear, has not completed any course of studies, the Tribunal’s reluctance to extend further time was wholly proper.

28. In my view, the applicant’s chances of success, were the matter to be reinstated, would be of sufficiently limited nature that it is inappropriate and there is therefore no utility to reinstating.  In my view, the applicant would face, even if nothing else, insuperable difficulties in explaining why he was a genuine applicant as a student in circumstances where, on any view of the matter, he did not study from September 2010 until July 2011. 

29. In all the circumstances, I dismiss the application to reinstate the proceeding with costs. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 August 2014