FEDERAL COURT OF AUSTRALIA Manage v Minister for Immigration and Border Protection (No 2) [2015] FCA 302 Citation: Manage v Minister for Immigration and Border Protection (No 2) [2015] FCA 302 Parties: CHAMINDA DINESH MARAKKALA MANAGE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 636 of 2014 Judge: PAGONE J Date of judgment: 30 March 2015 Catchwords: MIGRATION – Application to set aside order dismissing application for leave to appeal against decision of Federal Circuit Court – where applicant failed to appear at hearing of application for leave to appeal – where Federal Circuit Court dismissed application for judicial review of decision of the Migration Review Tribunal – where Migration Review Tribunal upheld decision refusing to grant applicant Skilled (Provisional) (Class VC) visa. Legislation: Federal Court Rules 2011 (Cth) r 36.75 Migration Regulations 1994 (Cth) cl 485.215 Date of hearing: 30 March 2015 Date of publication of reasons: 1 April 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Counsel for the Respondents: Ben Petrie of Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 636 of 2014 BETWEEN: CHAMINDA DINESH MARAKKALA MANAGE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 30 MARCH 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 636 of 2014 BETWEEN: CHAMINDA DINESH MARAKKALA MANAGE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE: 30 MARCH 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant seeks to set aside orders made on 23 February 2015 dismissing an application he had made on 28 October 2014 for leave to appeal from a judgment which had been made on 15 October 2014 in the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal. The Tribunal had, on 12 February 2014, upheld a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa. 2 The application for leave to appeal from the decision of the Federal Circuit Court was listed for hearing in this Court on 23 February 2015. The applicant did not appear at the hearing on that day and his application was dismissed under r 36.75 of the Federal Court Rules 2011 (Cth) on the application of the Minister for Immigration and Border Protection. The Minister had previously filed detailed submissions seeking dismissal of the proceeding on its merits. The proceeding was dismissed on 23 February 2015 pursuant to r 36.75 on the basis that the applicant had made no appearance on the date fixed for the hearing of his application but, in doing so, I observed and recorded in my decision that I had read the materials which had been filed by the Minister for dismissal of the matter on the merits and was confident that it would have been appropriate to dismiss the proceeding on the merits in any event. That is because, in short, as his Honour had found in the Federal Circuit Court, the applicant had not satisfied the requirements for the visa which he had sought and, therefore, had no ground upon which his application could succeed. 3 The applicant now seeks to have set aside the orders made on 23 February 2015. Today he has appeared before the Court and has sought more time in which to make the current application to have set aside the orders made on 23 February 2015. He has sought more time on the same material that he had filed for the application to set aside the orders made on 23 February 2015, adding, however, that he has attempted to obtain some legal assistance, but has failed to do so. There is no supporting material for any of these facts beyond his statement that he has not had sufficient time. I reject the application for more time, and I do not accept his unsupported claim that he has not had sufficient time to make his application today. He had previously known about the hearing which was held on 23 February and did so before 23 February. Over a month has passed since then and there is no supporting evidence of any steps taken by the applicant to have prepared for the hearing on 23 February 2015 or to have prepared for the hearing today. There is no material before this Court that would justify the granting of any further time to make the application which he has made to set aside the orders which were made on 23 February 2015. He has claimed to be mentally unwell, but has provided no supporting material of that condition beyond his own assertion. The Court is not able to act upon an assertion made by the applicant of a mental condition which requires expert evidence. For those reasons I reject the application to extend time. I do so, also, on the basis that underlying his application for more time is an application for leave to appeal which depends upon the fact that the applicant did not have, at the relevant time, adequate evidence of having competence in English in order to obtain the visa which he sought. It is clear that the underlying decision which the applicant seeks to contest, and which was made on that basis, was plainly correct, and that no further time is going to help the applicant overcome that difficulty. 4 I now turn to the application to set aside the orders that were made on 23 February 2015. In order to succeed the applicant must satisfy the Court that there is an adequate reason for his non-appearance at the Court on 23 February 2015, that there is an arguable case or question to be tried in the substantive application, and that it is in the interests of justice to allow the application for leave to appeal to proceed. 5 The reason given by the applicant for his non-appearance is a claim by him of being mentally ill and under treatment. In an affidavit filed in support of the present application the applicant has said: Now I submit that I had valid reasons for my absence and during the material period of this case I was mentally ill and under treatment under the supervision of Psycologist [sic] Dr.Elena DiGiacomo. I state that I could not concentrate on anything about cases and even could not manage my personal affairs. My brother Nalim Priyantha helped me during this period to manage my personal affairs. I undertake to submit all the medical reports and certificate [sic] in due course. The applicant continues in his affidavit by repeating that it was due to his "said psychological issues" that he could not prosecute his application for leave to appeal in the Federal Court on 23 February 2015 when it was dismissed. Medical certificates have not been supplied and no sufficient link has been made between the assertion of his mental condition and an inability to pursue his case on 23 February 2015 beyond the assertion by the applicant. There is, beyond his assertion, nothing upon which the Court could reliably conclude that his mental condition was such that he was not able to attend on 23 February 2015 or to argue his case on that day. He has appeared in person today with the assistance of an interpreter but has not provided any medical report to support his claims about his mental condition. He was specifically asked during the hearing whether he had any medical report with him and he answered that he did not. 6 The application which was dismissed on 23 February 2015, and which he now seeks to maintain, in any event, lacks sufficient merit. The applicant had applied on 20 August 2012 to the Department of Immigration and Citizenship for the Skilled (Provisional) (Class VC) subclass 485 visa which required that he establish competence in English. He had stated that he had undertaken an IELTS test on 4 August 2012 in his visa application and that his language ability was "competent" but he did not provide a copy of the test results with his application. He was asked by the Department on 21 December 2012 to provide evidence of his claim to have competence in English but did not respond to that request. The Minister refused to grant his application on 18 April 2013 on the basis that he had not provided evidence that he had competent English as required by the Regulations and therefore that he did not meet the criteria for the visa. 7 He applied to the Tribunal on 9 May 2013 for a review of the delegate's decision and on 15 May 2013 the applicant was told to provide, as soon as possible, material or written arguments for the Tribunal to consider. On 28 October 2013 the Tribunal sent to the applicant, via fax to his representative, a letter inviting the applicant to appear before the Tribunal. In that letter the Tribunal specifically noted that the applicant had not provided evidence that he had met the competent English requirement for the visa and explained to him how to show "competent English". The applicant attended the Tribunal on 3 December 2013, accompanied by his representative, but provided no evidence that he met the competent English requirement. The applicant requested the Tribunal to delay its decision for one and a half months to provide the applicant time to obtain other visas to remain in Australia and the Tribunal agreed to defer making its decision until the beginning of 2014. On 12 February 2014 the Tribunal affirmed the delegate's decision to refuse to grant the applicant the skilled visa he had sought. The Tribunal found that the applicant did not meet the requirements of cl 485.215 and, therefore, that he did not satisfy the criteria for the grant of the visa which he had sought. 8 The sole ground pleaded by the applicant in his application to the Federal Circuit Court was that the Tribunal had made a decision "without jurisdiction or [which was] affected by an error of jurisdiction". The only particulars given by the applicant for that ground was that the Tribunal "should have used its discretion to delay its decision, as the applicant was not asking the Tribunal to indefinitely defer its decision, but a deferral of a few weeks to enable the applicant to consolidate another application". The ground was bound to fail because, as indicated above, the Tribunal did in fact defer making a decision as he had requested. However, the Federal Circuit Court also found that the applicant could not satisfy one of the elements of the requirements of the visa and that his claim must inevitably fail. 9 Two grounds of appeal were relied upon by the applicant in his application for leave to appeal to this Court which was dismissed on 23 February 2015. The first was that the "learned Federal Circuit Court Judge had erred by failing to consider all the relevant circumstances of the appellant in making the decision and his current medical conditions". The second was that the "learned Federal Circuit Court Judge erred in law [by] failing to consider that the member of the Migration Review Tribunal [had] not followed the relevant circumstances including Departmental Policy Guidelines and [the] Migration Regulations 1994". Neither ground was particularised and neither ground can overcome the continuing fact that the applicant lacked the relevant precondition necessary for the grant of the visa he has sought, namely, competence in English. His application for leave to appeal lacked sufficient substance to succeed had he appeared on 23 February 2015 and it lacks substance to justify setting aside the orders made on that day. 10 In these circumstances it is not in the interest of justice to allow the application for leave to appeal to proceed. All of the material in the proceeding points to the interest of justice being best served by the application being dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 1 April 2015