Maggo v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 In April 2010 the appellant was granted a sub-class 173 Contributory Parent Visa. He was sponsored by his daughter. He entered Australia on 3 May 2010 and continues to reside here. The visa was valid until 3 May 2012. 2 On 1 May 2012 the appellant lodged an application for a sub-class 143 Contributory Parent Visa. One of the conditions for the grant of such a visa was that the appellant be sponsored by a child. Neither of his children who are resident in Australia was prepared to act as sponsor. As a result the application was not accompanied by a form which acknowledged a willingness to sponsor the appellant for migration to Australia. This deficiency was pointed out to the appellant but he took no steps to rectify it. As a result a delegate of the Minister refused the application on 20 July 2012. 3 On 14 August 2012 the appellant applied for review by the Migration Review Tribunal ("the Tribunal"). The application was not referred to a member until 28 August 2013. The member considered the application and, on 9 September 2013, wrote to the appellant informing him that he had considered the material before it but was unable to make a favourable decision on that information. The appellant was invited to appear before the Tribunal on 13 November 2013. 4 Five days before the scheduled hearing the appellant wrote to the Tribunal seeking a postponement of the hearing for three weeks. He provided prescriptions and a medical certificate. He said that he needed more time to collect information and documents required. The medical certificate was dated 6 November 2013 but said no more than that the appellant had attended the clinic. The Tribunal declined to postpone the hearing and the appellant was so advised. 5 The hearing proceeded on 13 November 2013. The appellant attended. 6 The Tribunal summarised the appellant's evidence as follows: "● The applicant told the Tribunal that his daughter had originally sponsored him for his Subclass 173 visa but she refused to sponsor him for the Subclass 143 visa; • The applicant said that his daughter refused because she had wanted him to hand over his property to his wife's family but he had refused. The applicant said that his daughter wanted him to hand over his land to family and then she would sponsor the applicant; • The applicant said that when he refused his daughter and his wife had made him leave the house; • The applicant told the Tribunal that he had established a courier business in Australia and he could provide financial documents to show that he had more than enough funds available as a contribution to this visa; • The applicant said that he had nothing to return to in India and that his wife's brothers may exact some type of revenge on him for not giving up his land; • The applicant told the Tribunal that his daughter Ravneet is divorced and his son Manpreet who also resides in Australia is also divorced. He had no other children in Australia; • The applicant asked for time to provide additional material. The Tribunal discussed the chronology of the visa application and the application for review and informed the applicant that he had been put on notice about the deficiencies in his application in the decision record and he had had sufficient time to provided additional material to the delegate and the Tribunal and he had not. The Tribunal having regard to the circumstances of this matter declined to give the applicant and extension of time; • The applicant asked the Tribunal for advice as to what he should do and the Tribunal told the applicant that he should seek appropriate advice to clarify his future options." 7 The Tribunal found that it was a mandatory requirement for the grant of a sub-class 143 visa that an applicant be sponsored, relevantly, by one of his or her children. The appellant was not so sponsored and was not, as a result, eligible for the relevant visa. The Tribunal affirmed the decision under review. 8 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. He relied on three grounds. They were that: The Tribunal had refused the application "without considering all facts." The Tribunal had not provided him with any opportunity to defend himself while he was "having medical condition." The Tribunal had not used its discretion to allow him a reasonable time to collect and produce evidence to support his review application. The grounds were not particularised. 9 The appellant attended the hearing in the Federal Circuit Court and presented oral argument. He did not identify any facts which he said the Tribunal should have, but had not, considered. He sought to rely on an ambiguous entry on the Department's website which might have been construed to suggest that he was eligible for the grant of the visa. As the Court held, it was bound to apply the law and not what appeared on the Department's website. 10 The appellant told the Court that he had a company in Australia which had assets and which was paying tax. He implied that the company could support him even if his children were unwilling to do so. As the Court pointed out company sponsorship was not an option provided for in the conditions attaching to a sub-class 143 visa. As a result any adjournment for the purpose of provision of company documents would have been pointless. Moreover, there was nothing to be gained from granting an adjournment given the appellant's acknowledgement that neither of his children was prepared to act as a sponsor. The Court dismissed the application: see Maggo v Minister for Immigration and Border Protection [2014] FCCA 1777. 11 The appellant then lodged the present appeal. He relied on a single ground. It was that the Federal Circuit Court had failed to take notice of what he said were "new amendments made in Migration Act on June 2 2014". He did not identify the relevant amendments or explain how they bore on his application for a visa. 12 The appellant failed to comply with a direction to file and serve a summary of his submissions. Whilst the appeal was pending, he applied to the Registry for this morning's hearing to be adjourned. He did so on the basis of a medical certificate which asserted that he had attended the emergency department at the Box Hill Hospital on 27 October 2014. 13 The certificate indicated that he had had an asthmatic episode. Following an attendance of about an hour in the emergency department he was discharged, and amongst the comments on the medical report was that he felt much better, one hundred per cent, and was wishing discharge. 14 There was, therefore, no evidence before the Court that would have supported the granting of the adjournment which he sought: cf NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]-[8]. His application was rejected and he was so advised both orally and in writing. 15 When the hearing was called on this morning, the appellant did not attend. 16 In the circumstances, I consider that the appropriate course is for the Court to dismiss the application pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). I do so because I am reluctant to dismiss the appeal on the merits, weak as they appear, in the absence of the opportunity to hear any supporting argument which the appellant may have wished to advance in support of his appeal, and, in particular, because I do not know what legislative provisions he referred to and suggested would have led to a favourable disposition of the appeal. 17 An order made under s 25(2B)(bb)(ii) of the FCA Act on the ground that the appellant had not appeared to prosecute his appeal will enable him, should he be so minded or advised, to seek the reinstatement of the appeal if he is able to advance appropriate grounds. That will ensure that he will, if such an application is made and granted, have the opportunity to advance any arguments which he may have to support his appeal: cf Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [10]-[13]. 18 The appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.