Ahmed v Minister for Immigration
[2017] FCCA 2677
•1 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2677 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – application for reinstatement of show cause application which had been dismissed for non appearance – no merit in show cause application – application for reinstatement dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Gurung v Minister for Immigration & Anor [2015] FCCA 1445 Minister for Immigration v Li [2013] HCA 18 MZYEZ v Minister for Immigration [2010] FCA 530 Ram v Minister for Immigration & Anor [2016] FCCA 645 |
| Applicant: | MUNIR AHMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3625 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
INTERLOCUTORY ORDERS
The Application in a Case filed on 12 October 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3625 of 2016
| MUNIR AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 12 October 2017. By that application, the applicant, Mr Ahmed, seeks a number of orders, but relevantly seeks that the Court set aside a dismissal for non-appearance order and costs order made on 8 September 2017.
The Application in a Case is supported by an affidavit filed with it in which Mr Ahmed explains why he did not appear on 8 September 2017. That explanation is that Mr Ahmed attended the Court building at 80 William Street but went to the wrong floor. He waited there for a time and missed his hearing. When he arrived at the correct courtroom, he was told that I had already dismissed his application. He received a copy of the orders I had made from a security officer outside the Court. That is corroborated by what I was told by my own staff on the day in question.
I also have before me the show cause application filed by Mr Ahmed on 19 December 2016, two affidavits filed by Mr Ahmed in support of that application on 19 December 2016 and 24 August 2017, the court book filed by the Minister on 11 May 2017, and written submissions filed in the substantive proceedings by the Minister on 1 September 2017.
I accept, as submitted by the solicitor for the Minister that the relevant principles governing an application for reinstatement are set out at [7] of the decision of the Federal Court in MZYEZ v Minister for Immigration[1], which stated at [7]:
[1] [2010] FCA 530
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
(emphasis added)
In the present case, I accept that Mr Ahmed has offered a reasonable excuse for his absence from the hearing. The simple fact is that he attempted to attend Court but mistakenly went to the wrong floor. The Court had made an attempt to telephone him on his nominated telephone number, which was unsuccessful. The probability is that Mr Ahmed’s mobile phone was turned off, given that he was within the Court precinct.
Secondly, no prejudice in this case would flow from the reinstatement of the substantive application.
In the present case, the real question relates to the third issue, whether the substantive application has a reasonably arguable prospect of success. In that regard, the Minister’s written submissions deal with Mr Ahmed’s show cause application. I agree with those submissions.
Mr Ahmed is a citizen of Pakistan[2] whose last substantive visa ceased on 18 June 2012.[3] On 8 June 2016, he applied for a medical treatment visa[4]. On 10 June 2016, a delegate of the Minister (delegate) refused to grant the visa[5]. On 22 June 2016, Mr Ahmed applied for review to the Tribunal[6]. On 25 November 2016, the Tribunal affirmed the delegate’s decision[7]. On 19 December 2016, Mr Ahmed commenced the current proceedings.
[2] Court Book (CB) at 5
[3] CB at 62, [12], [17] - [18]. The Minister notes that the Tribunal incorrectly notes at [10] the date the applicant last held a substantive visa was 30 October 2012. It is evident this was a clerical error. The correct date is 18 June 2012.
[4] CB at 61, [2]
[5] CB 39 - 41
[6] CB at 42
[7] CB at 61 - 66
Relevant legislation
For the grant of the visa, Mr Ahmed had to satisfy clause 602.213 of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 602.213 required, unless the exception in clause 602.212(6) applied, that criteria 3001, 3003, 3004 and 3005 of schedule 3 of the Regulations be satisfied: see for example Ram v Minister for Immigration[8].
[8] [2016] FCCA 645 at [7]
Clause 602.213 of the Regulations, at the date of the application for review to the Tribunal, stated:
Subclause (2) applies if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant held a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(2)The substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) Diplomatic of Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(3)Subclauses (4) and (5) apply if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant did not hold a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4)The last substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) Diplomatic of Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5)The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
Clause 602.212(6) of the Regulations states:
(6)All of the following requirements are met:
(a)the applicant is in Australia;
(b)the applicant has turned 50;
(c)the applicant has applied for a permanent visa while in Australia;
(d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Criterion 3001 of the Regulations states:
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
…
(c)if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994;
…
whichever is the later of:
(ii) the last day when the applicant held a substantive or criminal justice visa; or
(iii) the day when the applicant last entered Australia unlawfully…
The Tribunal’s findings
The Tribunal identified the issue for determination as being whether Mr Ahmed satisfied the requirements of clause 602.213 of the Regulations[9].
[9] CB at 61, [6]
The Tribunal noted that Mr Ahmed’s last held substantive visa (being a Subclass UC-456 visa) expired on 18 June 2012, and that he applied for a medical treatment visa on 8 June 2016[10]. The Tribunal found that Mr Ahmed did not meet clause 602.212(6) of the Regulations as he did not hold a substantive visa at the time of the application[11], and that the last substantive visa held was not a subclass 403 or 426 visa[12].
[10] CB at 62, [12]
[11] CB at 62, [12] - [14]
[12] CB at 62, [15]
The Tribunal then turned to consider whether Mr Ahmed satisfied criteria 3001, 3003, 3004 and 3005 in Schedule 3 of the Regulations[13]. The Tribunal found that Mr Ahmed had not lodged his medical treatment visa application within 28 days of the relevant day (being 18 June 2012), and therefore did not satisfy criteria 3001[14]. The Tribunal hence found that Mr Ahmed did not meet the requirements for the grant of the medical treatment visa[15].
[13] CB at 62, [15]
[14] CB at 62, [18]
[15] CB at 62, [19]
Grounds of review
Mr Ahmed raised five grounds of review, being:
1The Tribunal denied me procedural fairness in that it failed to give proper consideration to the medical records and evidence that I presented to the Tribunal supporting my case for a medical visa. [Ground 1]
2.The Tribunal misapplied and/or misconstrued Clause 602.121(6) of the Regulations and in so doing committed legal error that I do not qualify for the medical visa that I had applied. [Ground 2]
3.The Tribunal misapplied criterion 3001 in that although I did not hold a substantive visa, I was seeking one because my medical condition had deteriorated after the expiry of my last substantive visa. [Ground 3]
4.The Tribunal's decision is legally unreasonable in the circumstances of my case in that my medical condition and all supporting medical evidence shows that I should be granted a medical visa to continue my medical treatment in Australia. [Ground 4]
5.I kindly request the Honourable Court to kindly set aside the Tribunal's decision of 25 November 2016. [Ground 5]
(Errors in original)
As a preliminary matter, non-satisfaction of criterion 3001 is fatal to the grant of a medical treatment visa[16]. Notwithstanding Mr Ahmed’s grounds, or the evidence contained in his affidavits, the Tribunal was bound to refuse his application without the exercise of any discretion.
[16] Sayadi v Minister for Immigration (Sayadi) [2015] FCA 1235 at [18]; Gurung v Minister for Immigration & Anor [2015] FCCA 1445 at [16] - [17]
Ground 1
Ground 1 lacks merit. Mr Ahmed’s medical records were noted by the Tribunal, and Mr Ahmed’s medical condition was discussed during the Tribunal hearing[17]. The Tribunal “cannot have erred in not [considering evidence]” when criterion 3001 was unsatisfied[18].
[17] CB at 61, [8] - [9]
[18] Sayadi at [18]
Grounds 2 and 4
Grounds 2 and 4 are unparticularised assertions of error, and on that basis alone would have been dismissed[19].
[19] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
Ground 4 does not reveal any error that meets the legal test for unreasonableness as set out by Hayne, Kiefel and Bell JJ in Minister for Immigration v Li[20]. As criterion 3001 was unsatisfied, the Tribunal was bound to affirm the delegate’s decision, and could not have done so unreasonably.
[20] [2013] HCA 18 at [76]
Ground 3
Ground 3 concedes that no substantive visa was held when Mr Ahmed applied for the medical treatment visa. This is fatal not only to Ground 3, but the entire application for judicial review.
Ground 5
This Ground does not reveal jurisdictional error and would have been dismissed.
Conclusion
Further, as I explained to Mr Ahmed in oral argument today, even if some legal problem had been identified with the Tribunal decision, it would be futile to remit the case to the Tribunal. That is because, consistently with the decision of the Federal Court in Sayadi and my own decision in Saifuddin v Minister for Immigration & Anor[21], Mr Ahmed cannot qualify for the visa he sought. That in turn is because he cannot satisfy criterion 3001, which was fatal to his visa application.
[21] [2016] FCCA 1497
It follows, and I find, that Mr Ahmed cannot demonstrate a reasonably arguable case in his substantive application. Further, even if some arguable case might have been advanced, it would have been futile to remit the matter to the Tribunal for the reasons already explained.
Having said that, it is apparent to me that this case raises humanitarian issues. Mr Ahmed’s affidavit material disclosed that he suffers from a serious illness for which he is receiving medical treatment. He is taking medication for his condition and is being attended to by medical practitioners, who have advised him to make the Minister’s Department aware of his condition and the treatment.
Mr Ahmed told me from the bar table that he is currently undergoing a course of treatment that will last another 6 to 10 months. He seeks the opportunity to remain in this country to complete that treatment before he returns to Pakistan. These are matters that the Minister might properly consider. They are, however, beyond the scope of this proceeding.
I will order that the Application in a Case filed on 12 October 2017 be dismissed.
In consequence of the dismissal of the Application in a Case, the Minister seeks an order for costs fixed in the sum of $750. That takes into account the costs award already made under order 2 made on 8 September 2017. Mr Ahmed did not wish to be heard on the question of costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the present application, fixed in the sum of $750.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 November 2017
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