Vemuri v Minister for Immigration and Border Protection

INTRODUCTION AND SUMMARY 8 This is an application for an extension of time to seek leave to appeal from the judgment and orders of the Federal Circuit Court dated 5 August 2014. The Court dismissed an application for review of a decision of the Migration Review Tribunal dated 23 August 2013 to refuse to grant the applicant a Student (Temporary) (Class TU) visa. 9 For the reasons which follow, the application is refused.

BACKGROUND 10 The applicant is a citizen of India. On 16 June 2011, the applicant applied for a Student Temporary (Class TU) visa. On 19 November 2011, his application was refused on the basis that he did not meet the requirements of the relevant provisions of Sch 2 to the Migration Regulations 1994 (Cth), namely: cl 572.223 relating to his English language proficiency and financial capacity, cl 572.224 (read with Public Interest Criterion 4005 in Sch 4) regarding completion of requisite medical assessments, and cl 572.225 with respect to evidence of adequate health insurance. 11 The applicant sought review of the delegate's decision in the Migration Review Tribunal on 21 December 2011. The following summary is taken from the Tribunal's reasons for decision. There is no basis in the material before the Court to doubt the accuracy of the account given by the Tribunal in its reasons. The applicant has not adduced evidence to contradict any part of this account. 12 On 22 December 2011, the Tribunal wrote to the applicant and invited him to provide material in support of his application and make written submissions. No response was received to that invitation. On 23 July 2013, the Tribunal wrote to the applicant inviting him to attend a hearing on 19 August 2013. 13 The Tribunal also invited the applicant to provide evidence of current enrolment or a current offer of enrolment for the purposes of cll 572.222 or 572.231, current evidence that he met the English language proficiency and financial capacity requirements of cl 572.223, evidence that he satisfied cl 572.224 and public interest criterion 4005 with respect to medical assessment, and evidence of adequate arrangements for health insurance in Australia for the purposes of cl 572.225. The applicant was also informed by the Tribunal that issues relating to cl 572.235, regarding compliance with conditions applying to his current visa, would also arise during the hearing. No response was received from the applicant to this correspondence. 14 The applicant did not appear at the hearing on 19 August 2013. At the end of the day of the hearing, some hours after the scheduled time for the hearing, the applicant contacted the Tribunal by telephone. He told a Tribunal officer he was unwell, and requested a further hearing and an opportunity to submit evidence. The Tribunal advised the applicant to submit any evidence as soon as possible. A few minutes later, the applicant sent an email to the address provided to him by the Tribunal officer during the phone call which said "he failed to attend the hearing that morning because he was not feeling well and had an appointment with his doctor". No other supporting documentation was provided. The fact that the applicant was able to send an email to the address given to him by the Tribunal is of some significance in assessing the reasonableness of the Tribunal's subsequent decision-making. 15 The next day, 20 August 2013, a Tribunal officer telephoned the applicant, to advise him that his request for a further hearing had been declined. Part way through the telephone call, the telephone service diverted to a text facility. The officer left a message with her contact details. The applicant did not return her call. 16 Later that same day, having not received a return telephone call from the applicant, the officer sent an email to the applicant, informing him that his request for a further hearing had been declined, but that the Tribunal member would not make a decision until close of business on 22 August 2013. The officer told the applicant that the Tribunal member would consider any evidence the applicant submits before making his decision. No material was received from the applicant. 17 Thus, despite several requests from the Tribunal, and some time given to him, the applicant had not provided the Tribunal with any material at all on which to consider his review application in relation to his student visa.

THE TRIBUNAL'S REASONS 18 On 23 August 2013, the Tribunal affirmed the decision of the delegate to refuse the applicant a Student (Temporary) (Class TU) visa. That decision was inevitable given the absence of material from the applicant. 19 The Tribunal expressed its reasons in the following terms (at [25]-[31]): 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 considered his request for a further hearing and declined to schedule a further hearing as the applicant did not provide any medical or other supporting evidence relating to his claimed inability to attend and only contacted the Tribunal near the end of the business day of the scheduled hearing. The Tribunal will therefore proceed to making a decision in accordance with s.362B of the Act. FINDINGS AND REASONS The delegate found that the applicant did not give evidence in accordance with Schedule 5A in relation to financial capacity and therefore did not satisfy cl.572.223(2)(a)(i). On the basis of the evidence before the Tribunal relating to enrolment, the last course the applicant was enrolled in was an advanced diploma level course, which was specified for Subclass 572 by the Minister in the relevant instrument under r1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 572. The Tribunal finds that the applicant is not a person designated under r.2.07AO of the Regulations and that he holds an eligible passport of India. According to IMMI 11/011, 2 April 2011, the instrument for r.1.41 that was in force at the time of application, the assessment level for the applicant's subclass and passport, and that to which the applicant is subject, is Assessment Level 4. The Schedule 5A requirements As discussed above, the applicant failed to give evidence in relation to financial capacity to the delegate in 2011. He has also failed to give evidence for the same purposes to the Tribunal notwithstanding the several attempts to invite him to provide material, written arguments, and evidence or to appear at a hearing to present arguments. 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). Failure ot meet this crucial criterion means the application fails. It is to be noted however that the applicant also failed to give evidence for the purposes of cl.572.224; and 572.225. In the absence of any evidence in relation to those requirements or any arguments the Tribunal finds the applicant does not satisfy these criteria. CONCLUSIONS For the reasons given above, the Tribunal is not satisfied that the applicant meets an essential requirements of cll.572.223; 572.224 and 572.224 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 cll.572.223, 572.224 and 572.225 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.

PROCEEDING BEFORE THE FEDERAL CIRCUIT COURT 20 On 18 September 2013, the applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. This application was filed within time. The application listed three grounds of review: 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 of legitimate decision 3. I do have exceptional circumstances beyond the application lodgement previously 21 The applicant also filed an affidavit, sworn on 18 September 2013, which repeated grounds 2 and 3 of his application. 22 On 20 November 2013, Registrar Caporale ordered that the proceeding be set down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). That hearing took place on 5 August 2014. The applicant appeared at the hearing, assisted by an interpreter in the Telugu language, as he was before me. I have already noted above at [6] what is recorded in the Federal Circuit Court judge's decision about the applicant in fact not turning up originally at the hearing and having to be contacted by the Court before he eventually appeared. 23 On the same day, Judge Driver ordered that the application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules. His Honour correctly observed that there could be no basis for jurisdictional error in relation to the Tribunal's decision-making about whether the applicant satisfied the visa criteria, as it was obvious the applicant provided no material to the Tribunal. The only issue was the Tribunal's refusal to adjourn the hearing as the applicant had requested. Of this matter, his Honour said (at [21]-[24]): In my view, in the circumstances of this matter, the Tribunal's decision not to adjourn the review was not unreasonable in any legal sense. I agree with the Minister's submission in that regard. The Tribunal's findings were open on the material and no error is apparent in its decision or approach. The Tribunal gave adequate reasons for refusing the Applicant's request for a postponed hearing date. Accordingly, the Tribunal's decision not to grant the Applicant a postponement of the hearing was not unreasonable in the sense considered by the High Court in Li. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

THE APPLICATION FOR AN EXTENSION OF TIME LEAVE TO APPEAL 24 Rule 44.12(1) of the Federal Circuit Court Rules provides that the decision of the Federal Circuit Court to dismiss the applicant's application pursuant to r 44.12(1) is interlocutory in character: see also Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17]. Therefore, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 25 Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days from the date on which judgment was pronounced or the order was made. On 29 August 2014, the applicant filed an application for an extension of time and leave to appeal from the decision of the Federal Circuit Court. The application was therefore 10 days out of time and an extension of time was required. 26 The applicant sets out the following grounds of application for an extension of time and leave to appeal: 1. HARSHA VARDHAN VEMURI came from India to Australia for further education in VET sector in November 2007. I had lot of hurdles in Australia in finishing my education. My parents have severe financial problems back in India to support my tuition fee and cost of living expenses was main cause behind my failure of student visa unsatisfactorily progress. Due to this situation my visa extension was refused. So that I am appealing this matter in apex Courts as I hope that I could win and get my visa back in Australia to finish the education which is to be finished to have better future in India. Does the Court 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 power is accept to check my argument to give legitimate decision on the basis of applicant is ready to provide valid reasons why he had to lodge the application after visa expiry, and how he is eligible to lodge the student visa application by satisfying. If he is given chance by Department of Immigration & Border Protection. 3. Reason for fieling [sic] the application late my solicitor through the grace time was 28 days and he is in overseas I was unable to communicate to him regularly so he told me to file the application. 27 An affidavit, sworn on 29 August 2014, and a draft notice of appeal were both filed with the application pursuant to r 35.12 of the Federal Court Rules. The affidavit restates the grounds set out in the application. The draft notice of appeal restates ground 2 of the application and also states the following ground of appeal: The applicant visa 572 was refused by the delegate on the basis of student visa criterion. Applicant Harsha Vardhan Vemuri has lodged the application in timeframe before his visa expiry. As Department of Immigration and Border Protection has records that Applicant has not satisfied the criterion. The applicant has no control of his situations which became very bad in Australia to provide Department of Immigration and Border Protection. And the applicant was been misguided to go the Migration review tribunal. Does the Court have power to re-open the original appeal pursuant to either a common law power or pursuant to statute. …

THE MINISTER'S SUBMISSIONS 28 Noting that the applicant was self-represented both before the Tribunal and Federal Circuit Court, and in this Court, the Minister nonetheless accepts that the applicant misunderstood the time period in which he was able to seek leave, and he has therefore provided a satisfactory explanation for the delay. The Minister also concedes the applicant's delay was a short one. The Minister is content for an extension to be granted to the applicant and for the matter to be determined as an application for leave to appeal. 29 However, the Minister submits the application for leave should be refused, on the basis that the decision of the Federal Circuit Court is not attended by sufficient doubt for the appeal to be allowed to proceed. The Tribunal was correct, the Minister submits, to find that the applicant did not satisfy cl 572.223 relating to his English language proficiency and financial capacity, cl 572.224 (read with Public Interest Criterion 4005 in Sch 4) regarding completion of requisite medical assessments and cl 572.225 with respect to evidence of adequate health insurance. The Minister contends that, in the absence of any evidence that the applicant satisfied those criteria, the Tribunal had no choice but to affirm the delegate's decision. The Minister also submits that, even if it could be shown that the Tribunal erred in applying one of those criteria, its findings that the remaining criteria are not satisfied provides an independent basis for supporting the Tribunal's decision and relief should be refused: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 30 Further, the Minister contends that the Federal Circuit Court was correct to conclude that no complaint of legal unreasonableness, in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 8, can be sustained against the Tribunal. The Minister notes that the applicant had 20 months while the Tribunal proceeding was on foot to provide evidence to the Tribunal. No evidence was provided and no extension of time was sought prior to the day of hearing. Although the Tribunal refused to reschedule the hearing, additional time was nevertheless provided to the applicant for him to provide evidence to the Tribunal prior to it making its decision on his review. The applicant did not provide any further evidence, and did not contact the Tribunal to seek further time to provide it. The Minister submits that the Federal Circuit Court was correct to find that the reasons of the Tribunal disclose an "evidence and intelligible justification" for the course it took.

APPLICABLE LEGAL PRINCIPLES 31 Although I have some doubts whether the applicant's evidence does provide a satisfactory explanation for the delay in seeking leave to appeal, given the position taken by the Minister, and taking into account that he is self-represented in a matter which has significant consequences for him and for his ability to remain in Australia, I am prepared to proceed on the basis the applicant should be granted an extension of time for filing an application for leave to appeal. 32 If the Minister had not consented, the position might have been different. On this basis, I move to the legal principles applicable to an application for leave to appeal, and whether leave should be granted. 33 The Court has a broad discretion to grant leave to appeal, conferred on it by s 24(1A) of the Federal Court Act. In DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399, the Full Court set out the factors governing the exercise of the Court's discretion: first, the prospects of the proposed appeal, and "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court" and, second, whether "substantial injustice" would result if leave were refused. Citing DÉcor Corporation, these principles were restated recently in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 at [20].

CONSIDERATION 34 The Federal Circuit Court judge was plainly correct in his finding that no jurisdictional error was revealed in the Tribunal's decision in relation to the application of the visa criteria for a student visa to the review brought by the applicant. There was simply insufficient material produced by the applicant to the Tribunal. 35 The Federal Circuit Court judge was therefore correct to approach the judicial review on the basis that the only real question was whether, in refusing to adjourn the hearing and give the applicant a second hearing, the Tribunal exercised its powers in a way which was not legally reasonable, as that concept has been explained by the High Court in Li. 36 There is in the Tribunal's reasons an intelligible justification for the course it took, especially in the light of having given the applicant time to submit material, and what its reasons reveal about the applicant's own conduct. The Tribunal's reasons reveal that the Tribunal made several attempts to contact the applicant and convey to him the importance of submitting material for his review. 37 The Federal Circuit Court judge was in my opinion correct to find that the Tribunal's refusal to adjourn the review "was not unreasonable in any legal sense". The Court's decision is not attended with sufficient doubt to warrant the grant of leave to appeal. There is no substantial injustice to the applicant because, although the Federal Circuit Court's dismissal of his judicial review has significant consequences for him, it is a decision without identifiable error and should stand. 38 The application for leave to appeal should be refused. There is no basis in the material for anything other than the usual order as to 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 Mortimer.