FEDERAL COURT OF AUSTRALIA

Rudhravaram v Minister for Immigration and Border Protection [2014] FCA 960

THE COURT ORDERS THAT:

1.     The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SUMMARY

1        This appeal concerns a decision of the Federal Circuit Court made on 11 April 2014, dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal made on 23 August 2013.

2        On 4 September 2014, and following the non-appearance by the appellant when the appeal was called on, the Court made orders, with costs. These are the reasons for those orders.

BACKGROUND

3        The appellant is a national of India who first arrived in Australia on 5 December 2007 as the holder of a student visa. On 16 June 2011, the appellant again applied for a Student (Temporary) (Class TU) (Subclass 572) visa. On 19 November 2011, a delegate of the Minister refused to grant the appellant the visa, on the basis that he had been unable to provide requested evidence to prove he had satisfied the requisite clauses in Sch 5A to the Migration Regulations 1994 (Cth) with respect to financial capacity (cl 5A405) and English language proficiency (cl 5A404) and therefore did not satisfy the delegate that he is a genuine applicant for entry and stay as a student pursuant to cl 572.223 of Sch 2 to the Migration Regulations. Further, by failing to provide evidence of adequate health insurance, the appellant had failed to meet the requirements in cll 572.225 and 572.235, and Public Interest Criterion 4005, as required by cl 572.224.

4        It appears from the delegate’s decision record that the appellant was not represented by a migration agent. It also appears that, despite being invited to do so, the appellant did not provide the delegate with any information against which the delegate could assess whether the appellant met the required criteria for the grant of a student visa.

5        On 21 December 2011, the appellant applied for review to the Tribunal. Again he was unrepresented. The evidence provides no explanation for time taken between his review application and the substantive steps taken by the Tribunal to undertake the review, but there was on any view a long delay, not apparently attributable to the appellant.

6        On 19 July 2013, the appellant was sent a letter, pursuant to s 360 of the Migration Act 1958 (Cth), inviting him to appear to give evidence and present arguments in relation to the issues arising in his review application before the Tribunal. He was notified in the letter the Tribunal had scheduled a hearing for 19 August 2013. The letter invited him to provide the following evidence, all of which was directed at the criteria applicable for the grant of a student visa to him:

    A certificate of enrolment or evidence he was enrolled in or subject to a current offer of enrolment in a registered course;

    Evidence of academic achievement while holding his student visa;

    Evidence of adequate arrangements of health insurance; and

    Evidence that the appellant satisfied English language requirements and financial capacity.

7        The letter also put the appellant on notice that if he failed to attend the scheduled hearing, the Tribunal “may make a decision without taking any further action to allow or enable you to appear before it”. This was a reference to the power conferred on the Tribunal by s 362B(1) of the Act.

8        The appellant did not provide any information in response to the Tribunal’s letter. Nor did he advise the Tribunal whether he would be attending the scheduled hearing.

THE TRIBUNAL’S DECISION

9        As foreshadowed, the review was listed for hearing in the Tribunal on 19 August 2013. The appellant did not appear at the Tribunal hearing. On 23 August 2013 the Tribunal affirmed the decision of the Minister’s delegate under review. A statement of reasons was produced by the Tribunal on 26 August 2013.

10        The statement of reasons (at [22]-[24]) records that the Tribunal took the following approach in relation to the appellant’s non-appearance at the hearing:

…The Tribunal kept the arrangements for the hearing open for several hours past the schedule time, but the applicant did not appear and did not contact the Tribunal.

The Tribunal is satisfied that the letter of 19 July 2013 was correctly sent to the address the applicant provided for receiving correspondence.

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 will therefore proceed to making a decision in accordance with s.362B of the Act.

11        In terms of the merits of the decision under review, the Tribunal stated (at [28]-[31]):

As noted earlier, the applicant did not satisfy several criteria set out in Schedule 2 for the grant of the student visa including the requirement of cl.572.223(2)(2)(i) to give evidence of financial capacity set out in Schedule 5A for his applicable assessment level. He was invited by the delegate to provide this and other evidence but he did not. The applicant appealed the Minister’s decision in December 2011 and since that time has not provided any material in support of his appeal despite being invited to provide evidence in relation to all the issues arising in the review.

On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i); thus does not meet cl.572.223.

Further, the applicant has not given any evidence in relation to the requirements of cll.572.224 and 572.225 The Tribunal finds he does not meet cll.572.224 and 572.225. He was informed that the Tribunal was unable to make a favourable decision on the basis of the material before it. He was invited to provide evidence or written arguments; he was invited to attend a hearing to present arguments and give evidence; he declined to take the opportunity to do any of the above. Failure to meet any one of the above crucial criteria means the application cannot succeed. The Tribunal has no alternative but to affirm the decision under review.

…

For the reasons given above, the Tribunal is not satisfied that the applicant meets cll.572.223; 572.224 and 572.225 of Schedule 2 to the Regulations. As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the Tribunal has found the applicant does not meet the criteria listed above, it follows that the applicant cannot be granted a visa of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

12        The evidence indicates the Tribunal sent a copy of its decision to the appellant at the residential address he had provided for all correspondence. It was the same address to which the Tribunal sent the s 360 hearing invitation letter.

13        There is no evidence before the Court of any attempts by the appellant to contact the Tribunal before or after the scheduled s 360 hearing. There is no evidence the appellant sought an adjournment of the s 360 hearing. The appellant did not provide any evidence to the Federal Circuit Court, nor to this Court, seeking to explain his lack of contact with the Tribunal, nor to explain why he did not attend the s 360 hearing.

THE REVIEW IN THE FEDERAL CIRCUIT COURT

14        On 18 September 2013, within the time provided for in the Act, the appellant sought judicial review of the decision of the Tribunal in the Federal Circuit Court. I infer therefore that he received the Tribunal’s letter enclosing its decision and reasons for decision in the usual course.

15        The grounds of review in his application were stated as follows:

1.    S.477, Judicial review can be lodged after 35 days after tribunal 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

16        An affidavit of the appellant, sworn on 18 September 2013, was filed in support of his application. That affidavit simply restates grounds 2 and 3 as set out in his application for review.

17        On 11 April 2014, the Federal Circuit Court dismissed the appellant’s application with costs: Rudhravaram v Minister for Immigration and Border Protection [2014] FCCA 1001. The Court’s reasons, revised from the transcript and published on 19 May 2014, state (at [2]-[5]):

The applicant does not allege that the Tribunal made any error. The applicant seeks the exercise of a general discretion to give him another chance to present his case to the Tribunal as he says he was misguided in not presenting his material to the Tribunal on the first occasion.

I do not have any general discretion under the Act with respect to Migration matters. I can only deal with applications for judicial review and the circumstances in which I can make orders are limited by the rules relating to jurisdictional error.

I do not have a power, even if I wished to exercise it, to set aside a decision and give a person a further opportunity to have another hearing before the Tribunal unless the Tribunal have committed a jurisdictional error.

In these circumstances I have no option but to refuse the application.

THE APPELLANT’S NOTICE OF APPEAL

18        On 2 May 2014 the appellant filed a notice of appeal in this Court, appealing the decision of the Federal Circuit Court. The grounds of appeal are as follows:

The applicant visa 572 TU was refused by delegate on the basis of student visa criterion under the Migration Act 1958; Applicant, Saikiran RUDHRAVARAM has lodged the application in timeframe before his visa expiry. As Department of Immigration And Border protection ( DIBP) has records that Applicant has not satisfied the criterion of the 572 subclass grant. Repeatedly applying for the visa and not attaining satisfactory progress has exceptional circumstances which weren’t accepted by DIBP delegate, DIBP delegate has refused the application on the basis of failure to satisfy the schedule two criterion. The applicant has not had any control of his situations which became very bad in Australia to provide to Department of Immigration and Border Protection to be ineligible to lodge the student visa application in Australia. Exceptional circumstances beyond his control to lodge late application in Melbourne Victorian student center. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the student visa application by satisfying the schedule three criterion if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection)

Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made which has not been proved by applicant to make it Valid application”, but he has exceptional circumstance beyond his control.

19        The terms of these grounds bear a remarkable similarity to those filed by other self-represented appellants. The appellant also filed an affidavit in support of his application, sworn by him on 28 April 2014, which annexes the decisions of the Tribunal and the Minister’s delegate. This too resembles affidavits filed by other self-represented litigants on appeals to this Court. The appellant states:

I am not happy with decision made by Migration review Tribunal

(a)    As well as DIAC decision

I am not happy with decision of Federal Circuit court of Australia

20        In accordance with usual practice, on 23 May 2014 directions were made for the filing of an appeal book by the first respondent, and the filing of submissions by both parties. The appellant was directed to file submissions on or before 30 July 2014, being 10 business days prior to the hearing date. He did not file any written submissions in accordance with the directions made. The first respondent filed submissions in accordance with the directions on 6 August 2014.

THE APPELLANT’S REQUESTS FOR ADJOURNMENT

21        The appeal was listed for hearing on 13 August 2014. On 12 August 2014, the appellant wrote to the Court, seeking an adjournment of the hearing date on the basis he was suffering a viral infection. He provided a medical certificate, which certified in highly general terms that he “is/was/will be” (with none of the alternatives crossed out) “unfit for his usual daily activities” on 13 August 2014. The medical certificate itself did not state that the appellant had a viral infection, or indicate any other medical condition. There was no evidence about what the certifying medical practitioner had been told the appellant’s “usual activities” were, whether on 13 August or otherwise. Nor was there any evidence whether the certifying medical practitioner had been told by the appellant that he had a court hearing scheduled and that was what the certifying medical practitioner intended to certify that the appellant was unfit to attend.

22        Nevertheless, the first respondent was prepared to and did consent to the requested adjournment. In light of the first respondent’s position and the presence of a medical certificate, albeit an unsatisfactory one, the Court made orders on 12 August 2014 that the matter be adjourned to 4 September 2014. The appellant was sent those orders.

23        On the morning of 27 August 2014, the appellant again wrote by email to the Court, seeking a further adjournment. Attached to his email correspondence was a copy of a travel itinerary, in the name of the appellant, showing a date of departure from Australia to India of 30 August 2014, and a return date of 29 October 2014 from India. The appellant’s email stated that he had to go to India as soon as possible as his brother was in hospital. He sought a further adjournment, indicating in his email he would “get some time to do some further submissions”.

24        On the afternoon of the 27 August 2014, the Court replied to the appellant, advising that his request for a further adjournment had been refused. The Court noted that the appellant had not yet complied with directions for filing of written submissions. The appellant was advised that a further opportunity for written submissions would be granted to him, to be filed by 2 September 2014, and the hearing would go ahead as scheduled on 4 September 2014.

25        In response to that email, on the afternoon of 27 August 2014, the appellant wrote twice to the Court requesting an adjournment of the appeal hearing. In the first email, he wrote “I can do the submissions, but I’m mentally disturbed and I have to leave to india as early as possible. I will be arriving within a month”. In the second email, he wrote that he had changed his return date to Australia to 22 September 2014.

26        On the morning of 28 August 2014, the Court wrote to the appellant, confirming that the hearing would proceed on 4 September 2014. That morning the appellant responded to this email, again requesting that the Court postpone the hearing date, and stating that there was no one else to look after his brother in hospital in India. On the morning of Friday 29 August 2014, the Court responded to this request, again confirming that the hearing would proceed on 4 September 2014.

27        The appellant did not file any written submissions in accordance with the further leave granted to him.

The request for a second adjournment is refused

28        At the hearing of the appeal, the Minister’s legal representative read and relied upon an affidavit of Bromley Malcolm Hornsby, sworn 4 September 2014. Mr Hornsby is a solicitor employed by the Minister’s legal representatives. He deposed to receiving an email from an officer of the Department of Immigration and Border Protection, confirming the appellant had departed Australia on 30 August 2014. The attachments to the departmental email show that the appellant’s Bridging Visa will expire on 29 September 2014.

29        Unsurprisingly, given the Minister’s affidavit evidence, the appellant did not appear at the hearing on 4 September 2014. The interpreter arranged by the Court attended the hearing and was excused.

30        The Minister submitted the Court should determine the appeal in the absence of the appellant. I accepted that was the appropriate course to take. The appeal proceeded in the absence of the appellant and the Court made orders dismissing the appeal with costs, noting that reasons would be provided in due course.

31        The decision whether to grant or refuse an adjournment being discretionary, the particular circumstances of each case are generally determinative of the way in which the discretion should be exercised. That said, it is well established that the Court is entitled to consider the demands on the resources of the Court and the needs of other litigants in the Court. The “interests of justice” and the concept of prejudice extend to such matters: see Squire v Rogers (1979) 39 FLR 106 at 113-114 per Deane J; Sali v SPC Ltd (1993) 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ.

32        Added to this are the express statutory objectives set out in Part VB of the Federal Court of Australia Act 1976 (Cth), and especially in s 37M(2), including the efficient use of judicial and administrative resources, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The Court must exercise its discretion in relation to an application for an adjournment, bearing in mind these statutory objectives. Of course, another objective referred to in s 37M(2) is the “just determination of all proceedings before the Court” but, as the judgments in Squire and Sali observe, the notion of what is “just” and “unjust” extends beyond the immediate parties to a proceeding. The importance of adhering to these objectives has been repeatedly emphasised: see, eg, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 303 ALR 199; [2013] HCA 46 at [51]–[57] per French CJ, Kiefel, Bell, Gageler and Keane JJ; Commonwealth Bank of Australia v Robson [2013] FCA 1430 at [39] per Rares J.

33        Those considerations are just as important when the Court is exercising its appellate jurisdiction.

34        The following factual circumstances in the present appeal should be noted. The appellant made no attempt to comply with the Court’s initial direction to file submissions on the appeal. I take into account the fact the appellant is self-represented and asked for a Telugu interpreter to attend the appeal, having had an interpreter before the Federal Circuit Court. His email communications to the Court however would suggest he is capable of communicating his position in English if he wishes to do so. He did not take the opportunity initially given to him to explain to the Court in his own words why his appeal should succeed, by reference to any criticisms he had of the Federal Circuit Court or the Tribunal.

35        Instead, the day before the appeal was to be heard he sought an adjournment on medical grounds. I have already outlined the unsatisfactory nature of the medical certificate he relied upon. Despite this, he was given an adjournment and notified of the new hearing date immediately. He did not object to that hearing date.

36        After he was informed that the appeal would proceed on 4 September 2014, he was given a further chance to file written submissions by 4pm on 2 September 2014. In other words, even if he decided to go to India and not attend the scheduled hearing, the Court gave him a further chance to put his case in writing. He did not take this up. Instead, he requested the postponement of the hearing.

37        His request for a second adjournment gave a different basis: namely, a claim that he had to travel back to India because his brother was in hospital. It is not apparent whether the terms of his current visa even permit such travel. This consideration is relevant, or may be relevant, because the assumption underlying his request for an adjournment is that he can return to Australia and be present for the hearing of his appeal at a later date.

38        I made an inquiry of the Minister’s representative about this issue when the appeal was called on. On instructions, the Minister’s representative informed the Court, and I accept, that the appellant holds a Bridging Visa B, which entitles him to leave and re-enter Australia, so long as he re-enters 28 days from his departure.

39        Assuming in the appellant’s favour that his brother is in hospital and he feels he needs to return to India, there is no evidence about why he needed to travel on 30 August 2014, and not, for example, on 5 September 2014, which would be the day after his appeal hearing. Since that is a period of less than a week, and he proposed to be away for a long time apparently to attend to his brother’s needs, there is no basis to infer that his travel to India was so urgent that it could not have waited a further six days. Especially where there is no evidence about when he was notified of his brother’s hospitalisation, nor when he decided he would travel to India.

40         Further, there is no evidence about how the period of time he has chosen to stay in India is related to his brother’s hospitalisation. The Court could not be confident, for example, that a further adjournment may not be requested from India. His travel itinerary, submitted with the adjournment request, suggested he was not planning to return to Australia for a period of more than eight weeks. On the Minister’s instructions he would not have been permitted to re-enter Australia at that time.

41        As I have observed, the relationship between the period of eight weeks and his brother’s hospitalisation is not apparent. The likelihood of an absence of any real relationship between the period the appellant plans to be away and his brother’s hospitalisation is increased by the appellant’s subsequent suggestions by email that he could return earlier — by 22 September 2014. He suggested he had in fact altered his travel plans to return earlier. Coincidentally, this brings him within the 28-day period during which his Bridging Visa B permits him to re-enter Australia.

42        Accordingly, the appellant has not attempted to use the opportunities for submissions given to him so far, even to express in his own words what he says is wrong with the Tribunal decision. He has not provided any basis for the Court to accept he needed to travel prior to the scheduled hearing date rather than six days later. He has not given the Court any basis to accept he will re-enter Australia when he says he will, having changed his travel plans once already. I cannot be satisfied that, even if a further adjournment were granted, the appellant would appear at any further adjourned hearing. These factors all weigh in favour of refusing the second adjournment request.

43        At the level of general principle, I accept it is a serious matter finally to determine an appeal in the absence of the appellant. Against this seriousness must be balanced not only the factual circumstances to which I have referred, but resource allocation within the Court, and the appellant’s prospects of success on the appeal.

44        The effective and timely disposition of the Court’s appellate caseload is important. There is high demand for allocation of appeals into the four appellate sittings of the Court which are held each year. Migration appeals from the Federal Circuit Court are generally heard by single judges of the Court, and these matters in particular need to be dealt with expeditiously because of their large numbers, and the fact that some appellants are in immigration detention. The disruption likely to be caused to the Court’s scheduling and disposition of these appeals where adjournments are granted is a factor I take into account. If there is good reason for an adjournment, such disruption may be secondary. In this case, there is no good reason for a second adjournment.

45        Further, I am not satisfied that there is any serious injustice which will flow to the appellant from the refusal of this adjournment in the particular circumstances of this case. His appeal has no prospects of success and that position is not altered by postponing the appeal any longer. There is no evidence at all which could lead the Court to believe that the appellant might have intended to raise something at the hearing of the appeal which does not appear from the material already before the Court. He has put in no written submissions at all, although his emails show he can make a case for himself on matters which concern him if he wishes to. I refer to this factor not because the Court expects a self-represented person in the appellant’s position to be able to make legal submissions, but rather because it is his failure to take up any of the opportunities offered to him to express his criticism of the decision below which lead me to consider that he really has no criticism to offer other than disagreement with the outcome, and in that sense, his presence at the appeal would not elucidate any further what he asserts is wrong with the decision below. Indeed, the absence of any real criticism other than as to outcome was the position the Federal Circuit Court judge was faced with, as his Honour’s reasons reveal.

46        The appellant does not raise, for example, a procedural fairness ground which may have required some explanation or evidence from him at the hearing, allowing for the possibility the Court may have accommodated this, given he is self-represented.

47        The view I have reached that the appellant’s appeal has no prospects of success is the factor which has weighed most heavily in my exercise of discretion. Allowing for the appellant being self-represented, I have considered all of the circumstances of the Tribunal’s decision. There is no basis to believe that anything the appellant could now say would alter my opinion that the Tribunal’s decision is not affected by jurisdictional error. I set out my reasons for that conclusion below.

48        In those circumstances, the interests of justice are not served by any further prolongment of the inevitable orders the Court would make on this appeal.

THE MINISTER’S SUBMISSIONS ON THE MERITS OF THE APPEAL

49        The Minister submits that the notice of appeal and affidavit of the appellant do not allege any error by the Tribunal or the Federal Circuit Court. Further, he submits that, although the grounds of appeal refer to “exceptional circumstances”, it is not clear what those exceptional circumstances are and how they are relevant to his appeal. Finally, the Minister submits that the appellant’s application for a visa was refused as he failed to provide evidence to satisfy cll 572.223, 572.224 and 572.225. Even if, contrary to the Minister’s submissions and the findings of the Federal Circuit Court, the Tribunal’s reasons disclose a jurisdictional error in relation to one of those regulations, there remain other independent bases supporting the decision of the Tribunal, and the Court should exercise its discretion to refuse to grant the relief sought. The Minister relies on VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J as authority for this proposition.

CONSIDERATION OF THE MERITS OF THE APPEAL

50        Although the reasons for judgment of the Federal Circuit Court are extremely brief, the appellant has not established there is any error in the conclusion of the Federal Circuit Court, nor in the approach it took in its reasons to the Tribunal decision.

51        Indeed, the Minister is correct to submit that the appellant’s submissions do not seek to identify an error of the kind which can be corrected by this Court on appeal.

52        The Tribunal did not need to, and did not, engage in any analysis of the construction of the visa criteria because there was no evidence from the appellant to which the visa criteria could be applied. Nor was there any factual evaluation of material and evidence before the Tribunal, because there was no such material. There was only one conclusion open to the Tribunal, given the absence of evidence from the appellant: namely, that the visa criteria were not met.

53        The appellant had been given a reasonable opportunity to provide such evidence: first, because the review had been in the Tribunal for more than two years and the appellant had in that sense a long period of time in which to gather the necessary information and material. Secondly, the Tribunal’s hearing invitation, given pursuant to s 360 of the Act, was specific about the information the appellant needed to provide. It was sent to the appellant approximately a month before the scheduled hearing. The appellant did not communicate at all with the Tribunal. He did not, for example, suggest he needed further time to gather the necessary information.

54        There is no evidence to suggest the appellant did not receive the hearing invitation. The appellant himself has not suggested this in his contentions before the Federal Circuit Court or before this Court.

55        In his notice of appeal to this Court, the appellant states that he is “ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the student visa application by satisfying the schedule three criterion if he is given the chance by the Federal court or the DIBP”. The answer to that statement is that he wholly failed to take advantage of the opportunity to provide “valid reasons” to the Tribunal, being the stage which the legislative scheme of the Act identifies as the appropriate one to establish his eligibility for a student visa.

56        The appeal must be dismissed. There is no basis in the evidence for anything other than the usual order for costs to be made.

Associate:

Dated:    4 September 2014