Shetty v Minister for Home Affairs

In the federal Circuit Court 14 On 3 October 2018, the applicant filed an application seeking judicial review of the decision of the Tribunal. On 17 December 2018, there was a show cause hearing before the primary Judge in this case. 15 Before the primary Judge the applicant raised ten grounds for review which can be reduced to the following issues: The applicant could not undergo the required medical examination due to exceptional circumstances beyond his control; The Tribunal failed to consider the applicant's situation and his study progress; The Tribunal denied the applicant procedural fairness by failing to have regard to his claims and arguments; and The Tribunal made different findings to the delegate. 16 The primary Judge at [2] to [11] summarised the factual background and the decision of the Tribunal, noting that the Tribunal had affirmed the decision under review. His Honour confirmed there had been "an independent decision" that the applicant did not meet the criteria due to a lack of evidence surrounding the medical assessment and X-ray assessment. 17 At [12], His Honour noted that most of the applicant's grounds for review were 'statements of argument'. In his third ground for review, the applicant explained that he was unable to attend a medical examination due to 'exceptional circumstances' beyond his control. 18 His Honour noted at [13] that: The aspect in the grounds that the Applicant relies on just do not illustrate any arguable claim that he could make that there had been a jurisdictional error. 19 The primary Judge noted in [14] that 'the force of the decision is that he did not undergo the required medical examination or X-ray examination'. 20 The primary Judge concluded that the applicant did not raise an arguable case evidencing jurisdictional error. Accordingly, the primary Judge summarily dismissed the proceeding with costs. APPLICATION FOR LEAVE TO APPEAL TO THE FEDERAL COURT 21 The decision of the primary Judge was an interlocutory decision and the applicant requires leave to appeal that decision. 22 Mr Shetty filed an application for leave on 31 December 2018. In that application under the heading "grounds of application" he set out a detailed summary of his case. Then, under the heading "Grounds of Appeal" he set out a summary of events in the Federal Circuit Court, intermingling accusations of victimhood and absence of natural justice with a complaint about proceedings in the Tribunal. 23 To the extent that it is possible to glean grounds for leave to appeal from Mr Shetty's application, they appear to be as follows: (a) The primary Judge failed to look at his claims and prevented him from giving proper evidence. (b) The primary judge erred in not finding that the Tribunal misguided him during the hearing. (c) The primary judge erred in failing to find that the Tribunal breached its duty to assess his exceptional circumstances surrounding his enrolment. (d) The primary judge failed to find that the Tribunal breached its obligations in respect of the request for him to undergo a medical examination. 24 Mr Shetty submits that there was a lack of discussion regarding his circumstances at the Federal Circuit Court hearing. 25 Mr Shetty seeks that the appeal be allowed with no order for costs and additionally that the decision made by the Tribunal be reviewed. 26 The Minister seeks that the application for leave be dismissed and the applicant pay the costs of the first respondent. CONSIDERATION 27 At the hearing today I summarised the above points (a)-(d) as being what I understood to be Mr Shetty's grounds for leave to appeal. Mr Shetty agreed that this was an accurate summary. I invited him to make further oral submissions in the absence of written submissions filed by him, however he said he had nothing further to add. 28 Mr Kyranis for the Minister submitted that the Minister was content to rely on filed written submissions in circumstances where Mr Shetty had made no further oral submissions. 29 In considering whether the Court should grant leave to appeal, the Court must be satisfied that there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration, and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [398-399]. 30 Rule 44.12 of the FCC Rules which was applied by the primary Judge provides: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 31 The primary Judge's decision to dismiss the application was an exercise of discretionary power by his Honour under r 44.12(1)(a). A challenge to that decision requires the identification of an appealable error of the type canvassed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 at [21] per Griffiths J. 32 To substantiate a grant of leave by this Court against the decision of His Honour, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had shown cause, the primary Judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration or had reached a result that was simply unreasonable or unjust: House v The King (1936) 55 CLR 499 at 504-505. 33 The decision of the Tribunal addressed the applicant's circumstances. With respect to that decision, the primary Judge carefully examined the applicant's claims in the context of the show cause procedure prescribed by the FCC Rules. His Honour found that the applicant had not advanced arguments which warranted findings in his favour and accordingly, there was no basis on which His Honour should exercise his discretion by not summarily dismissing the proceedings. 34 The applicant was required to establish sufficient doubt as to the correctness of the primary Judge's findings and related exercise of discretion against the applicant, so that the applicant be granted leave to appeal. 35 I am satisfied no such sufficient doubt exists as to His Honour's findings, or the decision to summarily dismiss the proceedings. Further, I do not accept that the primary Judge failed to look at Mr Shetty's claims, and there is no evidence before the Court that the primary Judge prevented Mr Shetty giving proper evidence such that Mr Shetty was denied natural justice. The basis on which Mr Shetty claims that the Tribunal misguided him during the hearing is not clear, or reasons his Honour allegedly erred in failing to find that the Tribunal so misguided him. 36 To the extent that Mr Shetty claims that the Tribunal failed to properly assess his "exceptional circumstances", this appears to be an invitation to consider the merits of Mr Shetty's case, which is impermissible. 37 Finally, it is unclear how the Tribunal breached its obligations in respect of the request for him to undergo a medical examination. Such evidence as is before the Court indicates that Mr Shetty was aware of his obligations to undergo medical assessment (Tribunal reasons [22]). Any error about this is not evident. 38 The appropriate order is to dismiss the application for leave to appeal, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.