Abbas v Minister for Immigration

[2016] FCCA 2584

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBAS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2584

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal afforded procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.602.213, 3001 of Schedule 3
Federal Circuit Court Rules 2001, r.44.12

Applicant: TAYAB ABBAS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1237 of 2016

Judgment of: Judge Street

Hearing date: 6 October 2016

Date of Last Submission: 6 October 2016

Delivered at: Sydney

Delivered on: 6 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr M Glavac

Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1237 of 2016

TAYAB ABBAS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 April 2016 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a citizen of Pakistan and arrived in Australia on a student visa. The applicant’s last substantive student visa expired on 29 August 2012. It appears the applicant thereafter sought to pursue reviews in relation to a further application for a student visa. The relevant application to this Court was for a medical treatment visa. 

The Delegate’s Decision 

1. The delegate identified the criteria that applied in relation to Medical Treatment (Visitor) (Class UB) visa. One of the requirements was that the applicant held a relevant substantive visa within 28 days of applying for the current visa. The applicant held no such visa.

2. The delegate was not satisfied that the applicant met criterion 3001 in Schedule 3 to the Migration Regulations 1994 (“the Regulations”) and found that the applicant did not meet cl.602.213 of the Regulations. The delegate found that the criteria for the grant of a medical treatment visa was not met by the applicant.

The Tribunal’s Decision

1. Following the delivery of that decision by the delegate on 21 December 2015, the applicant applied for review to the Tribunal by application on 10 January 2016.

2. It is pertinent to note that the applicant signed an acknowledgement dated 18 December 2015 in which the applicant said:-

   “I, Tayab Abbas, understand and acknowledge that I have been told that my application for subclass 602 is vexatious and unfounded. I understand that this application is likely to be unsuccessful. Still, I instruct you to go ahead and lodge my application. I shall be responsible for the outcome.”

3. The application before the Tribunal was on its face also vexatious. By letter dated 1 March 2016, the applicant was invited to attend a hearing on 20 April 2016. The applicant appeared on that date to give evidence and present arguments. The applicant was assisted by an interpreter. 

4. The Tribunal identified that the relevant issue was whether the application was lodged within the relevant timeframe as required by the Act. The Tribunal identified that it had no discretion to exercise in relation to criterion 3001 in Schedule of the Regulations. The Tribunal identified that in order to satisfy criterion 3001 in Schedule 3 of the Regulations, the application for a visa must have been lodged within 28 days of the relevant day.

5. The Tribunal identified that the applicant lodged the application over three years after he last held a substantive visa. It was in those circumstances, the Tribunal found that the visa application was not made within 28 days of the relevant day and that the applicant did not satisfy criterion 3001 in Schedule 3 of the Regulations.

6. The Tribunal found the applicant did not meet the requirements for the grant of a visa and affirmed the decision of the delegate. 

Proceedings Before this Court

1. On 7 July 2016 a Registrar of the Court fixed this matter for final hearing. 

2. This is the type of matter that should have been fixed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules2001. Be that as it may, the applicant was given an opportunity pursuant to the orders of the Registrar to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the decision of the Tribunal was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The court explained that in summary this meant the Court was determining whether the review by the Tribunal was lawful and whether the review by the Tribunal was fair. 

4. The Court explained to the applicant that if satisfied the Tribunal’s decision was affected by relevant legal error it would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application and order the applicant to pay the first respondent’s costs in the amount of $7,206.00.

5. The Court explained to the applicant, it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant. 

6. The applicant confirmed that he understood the nature of the hearing as explained by the Court.  The grounds of the application are as follows:-

   1. jurisdictional error and lacked jurisdiction.

   2. Error in interpretation of legislation.

   3. Natural Justice.

Consideration and Conclusion

1. There was no substance in the grounds of the application. On their face, the grounds of the application are vexatious and fail to identify any arguable jurisdictional error. The generalised assertion of jurisdictional error and lacking of jurisdiction is completely without substance. Ground 1 does not disclose any jurisdictional error. 

2. Ground 2 is unsupported by any particulars to identify any error in interpretation of the legislation. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Ground 2 fails to make out any jurisdictional error. 

3. In relation to Ground 3, the generalised assertion of a denial of natural justice does not identify any jurisdictional error. There is no basis upon the material before the Court to find any want of compliance with the obligations of procedural fairness. Ground 3 fails to make out any jurisdictional error. 

4. From the bar table, the applicant asserted that he had been sick. No evidence has been adduced in relation to the applicant being sick and nor would that evidence give rise to a basis upon which there could be said to be any relevant legal error by the Tribunal.

5. This was an application that should not have been brought before this Court by the applicant. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2016