Abdelaziz v Minister for Immigration

[2018] FCCA 189

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDELAZIZ v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 188

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – the Tribunal correctly found the applicant failed to meet the criteria under cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994, cl.602.213 of sch.2, sch.3

Applicant: MOHAMED SOBHY MOHAMED ABDELAZIZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2232 of 2017

Judgment of: Judge Street

Hearing date: 29 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Sydney

Delivered on: 29 January 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Given
HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2232 of 2017

MOHAMED SOBHY MOHAMED ABDELAZIZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 June 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant was a citizen of Egypt and his last substantive visa expired on 30 March 2011. The applicant applied for the present visa on 20 December 2016. The Tribunal invited the applicant to attend a hearing to give evidence and present arguments on 26 June 2017, which the applicant attended. The Tribunal identified the relevant criteria for the grant of a visa and in particular, criterion 3001 of Schedule 3 to the Migration Regulations 1994 (“the Regulations”) that the applicant is to be made within 28 days of the relevant day. The relevant day was 30 March 2011. In these circumstances, the Tribunal found the applicant failed to meet the criteria under the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 17 July 2017. On 10 October 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision 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 if satisfied the Tribunal’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed for costs.

3. The Court explained that 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 in reply. From the bar table, the applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he should be granted the visa on humanitarian grounds. The applicant indicated that he had suffered an injury and that he wished to receive further treatment. The applicant also indicated that he wanted to continue to work. The applicant asked the Court to exercise mercy.

2. In the circumstances of the present case, the Court explained to the applicant that the Court had no power to grant relief on the basis of humanitarian grounds and no power to grant relief on an appeal for mercy from the Court, not because the Court does not understand the applicant’s request for the exercise of compassion, but the Court simply has no statutory power to grant relief on compassionate grounds.

3. This Court is confined by its jurisdiction to considering whether or not the Tribunal’s decision is affected by relevant legal error. The relevant legal error does not take into account matters relating to the merits of the application and this Court does not have any discretion in finding whether or not there was a jurisdictional error. The Tribunal did not have any discretion in determining whether to apply the criteria for the grant of a visa.

4. This was a case where the applicant’s application was doomed to failure from the start. The Tribunal did not have the power to grant the visa, because the applicant’s last substantive visa expired in 2011. I accept that the applicant may well have suffered a serious injury and is desirous of both treatment and constructively working, but that does not enliven any power in this Court to grant relief. 

Grounds in the application

1. The grounds of the application are as follows:

   1. The Tribunal refused my application solely based on the fact that I was on bridging visa and not substantive visa. This is a denial of natural justice because I had suffered a very serious injury in December 2016 and was hospitalised for two weeks and that I suffer a lot of trauma and I have exceptional circumstances which were not considered by the Tribunal.

   2. The law and especially Schedule 3 is wrong and I believe that my case should merit an approval from the Tribunal or at least a recommendation to the Minister for Immigration, as I have asked for, and the Tribunal failed to refer my matter to the Minister as requested.

Ground 1

1. The Tribunal correctly identified the relevant law and made findings of fact that were open to it in respect of when the last respective visa was held, as a result of which the Tribunal correctly found the applicant failed to meet the criteria under cl 602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

2. The Tribunal complied with its statutory obligations by inviting the applicant to attend a hearing. The Tribunal had no power to grant relief because of exceptional circumstances. Accordingly, ground 1 does not identify any jurisdictional error.

Ground 2

1. In relation to ground 2, the applicant disagrees with the legal requirements for the grant of the visa. That disagreement does not identify any relevant legal error and the Court does not have any power to grant relief because of the perceived merit of the applicant’s application.  Ground 2 fails to make out any jurisdictional error. 

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 February 2018