Abdul v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant came to Australian in 2008 to pursue studies in printing and graphic arts. He was granted a student (Class TU) visa. Having completed his first course he enrolled for a Diploma of Business. 2 On 9 July 2012 Mr Abdul applied for a further student (sub-class 572) visa. His application was rejected on the ground that he had not substantially complied with the conditions attaching to his previous student visa. This was because he had not been enrolled in a registered course between 24 December 2011 and 5 July 2012. 3 Mr Abdul sought review of this decision in the Migration Review Tribunal ("the Tribunal"). He accepted that he had not been enrolled as a student during the relevant period. He attributed this failure to a disabling medical condition. He sought to attribute his failure to tell the Department about his disability to advice given by his education provider that he should await contact from the Department. The Tribunal found that there was no medical evidence to support Mr Abdul's disablement claim and rejected his evidence about advice received from the education provider on credibility grounds. The Tribunal affirmed the decision to refuse the visa application. 4 Mr Abdul then sought judicial review of the Tribunal's decision in the Federal Circuit Court. He advanced three grounds. None of them alleged jurisdictional error on the part of the Tribunal. Despite this the learned judge carefully considered the evidence before the Tribunal and its reasons for decision. He also had regard to oral submissions by Mr Abdul which might have been understood to allege that the Tribunal had erred by failing to have regard to relevant evidence or making a finding which was not reasonably open to it. Having done so he held that Mr Abdul had failed to establish any jurisdictional error on the part of the Tribunal. He, therefore, dismissed the application: see Abdul v Minister for Immigration and Border Protection [2014] FCCA 1750. 5 Mr Abdul then filed this appeal. The notice of appeal did not identify any grounds alleging appealable error by the Federal Circuit Court. Instead, under the heading "Grounds of appeal", Mr Abdul set out a rather confusing narrative in which he used phrases like "new argument as explanation has been submitted by Migration agent but not by applicant" and "provision of false and misleading evidence and manifest error." He asked whether the Federal Circuit Court had power to re-open his application to it. 6 Despite directions providing for the filing and service of written submissions in support of his appeal, Mr Abdul filed no such submissions. 7 When the proceeding was called on this morning he did not appear. Yesterday the Registry of the court received a medical certificate, dated 5 November 2014, signed by a Dr Paul Blatt, which certified that Mr Abdul "was medically unfit for work 5/11/14 to 6/11/14 inclusive." Mr Abdul said that the reason he was medically unfit was because he had had an attack of hay fever. I note that whilst the certificate said that Mr Abdul was unfit for work, it did not in any way address the critical question of whether, and if so why, the medical condition would have prevented his attendance here this morning and his participation in this hearing: cf NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]. 8 I do not accept that Mr Abdul was prevented by any medical condition from attending this hearing. The material he has provided does not support this claim. Accordingly, the appropriate course, in my view, is for the Court to make an order under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed by reason of the appellant's failure to attend the hearing. The dismissal on this ground will not prevent Mr Abdul, should he have a proper basis for doing so, seeking the reinstatement of his appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.