Baby v Minister for Immigration

[2018] FCCA 2559

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2559

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the applicant was given an opportunity in accordance with the statutory regime to appear before the Tribunal – no legal unreasonableness in the Tribunal proceeding to determine the matter under s 362B of the Act – no arguable case of jurisdictional error – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.  

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 360A, 362B, 379A, 379C, 476

Migration Regulations 1994 (Cth), cl.602.213 of Schedule 2

Federal Circuit Court Rules 2001 (Cth), r 44.12

Applicant: RAFIN BABY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1291 of 2017

Judgment of: Judge Street

Hearing date: 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Sydney

Delivered on: 10 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Haddad
Clayton Utz

ORDERS

1. The oral application for an adjournment is dismissed.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1291 of 2017

RAFIN BABY

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 a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 10 April 2017, affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant’s last substantive visa expired on 28 October 2010. The applicant applied for a Medical Treatment visa on 1 November 2016.  On 2 November 2016, a delegate found the applicant failed to meet the criteria for the grant of the visa. 

3. The applicant applied for review on 21 November 2016. The applicant provided an email address for the receipt of correspondence in respect of his application for review. On 15 March 2017, the Tribunal sent to that email address, an invitation to appear at a hearing on 7 April 2017. The applicant failed to appear on that date and the Tribunal decided to proceed to determine the matter, pursuant to s 362B of the Act. The Tribunal referred to s 426A of the Act which was clearly a typographical error.

4. The Tribunal identified that the issue was whether the applicant satisfied the criteria under cl 602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The Tribunal identified when the applicant’s last substantive visa expired, being 28 October 2010, and that the application was not lodged for this visa until 1 November 2016. The delegate’s decision also referred to the date of the expiry of the last substantive visa and the date of the application made for the current visa. The Tribunal found the applicant did not hold a substantive temporary visa at the time of the application and affirmed the decision under review.

Before this Court

1. The proceedings were commenced on 28 April 2017. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under r 44.12 of the Federal Circuit Court Rules. On 22 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. On 20 August 2018 this Court made orders fixing the matter today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules. 

2. After the identification of the evidence, the applicant indicated that initially he was seeking an adjournment and then explained that he was referring to what occurred before the Tribunal, and that he had not appeared at the Tribunal. The applicant contended that he had not received the email and he was told by someone not to attend. The applicant asserted that he had not been given an opportunity to present his arguments. The evidence before the Court identifies that the applicant was sent an invitation to appear at the hearing in accordance with the statutory regime to the email address provided by the applicant for the purpose of the review and under the statutory regime, the applicant is taken to have received that invitation. Accordingly, the applicant, on the face of the material before the Court, under the statutory regime was given an opportunity to appear before the Tribunal. 

3. The applicant asserted that he did not receive the email. The applicant’s assertion that he did not receive the email does not identify any error by the Tribunal in proceeding to determine the matter under s 362B of the Act. In circumstances where the Tribunal found the applicant had been properly invited to attend the Tribunal, there is no legal unreasonableness in the Tribunal proceeding to determine the matter under s 362B of the Act. 

Adjournment application raised from the bar table

1. From the bar table, the applicant then indicated that he did want to make an application for an adjournment so he could have a further two weeks to put on submissions. The adjournment application was opposed by the first respondent. The applicant has had ample opportunity, given the commencement date of these proceedings on 28 April 2017 to put on any submissions that he wished to do so. Such an opportunity was further given by the orders of the Registrar on 22 May 2017 and by the orders of this Court on 20 August 2018. 

2. Further, the Court is not satisfied that there would be any utility in granting an adjournment, in circumstances where the substantive application lacks any real merit or prospect of success. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. It is for these reasons that the adjournment application was refused. Nothing said by the applicant from the bar table identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to exercise its jurisdiction. It was error for the Tribunal to assess the application without allowing applicant to present his arguments.

   2. My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

   3. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.

Ground 1

1. In relation to ground 1, for the reasons earlier given, the Tribunal was entitled to find on the material before it that the applicant had been notified in accordance with the statutory regime. The Tribunal complied with s 360 of the Act by inviting the applicant to appear before the Tribunal. The Tribunal complied with s 360A of the Act, as the applicant was notified of the date, time and place at which the applicant was scheduled to appear and the Tribunal was entitled to find that the notice had been sent to the applicant’s email address in accordance with s 379A(5)(b) of the Act which the applicant had provided for the purpose of the review. It was open to the Tribunal, where the notification process had taken place pursuant to s 379C of the Act, to proceed to determine the matter under s 362B of the Act. 

2. No arguable case of legal unreasonableness arises in the circumstances of the present case in respect of the decision of the Tribunal to proceed in circumstances where the applicant had been notified in accordance with the statutory regime. No arguable case of jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, the applicant’s assertion of no attempt to contact him does not sit neatly with his submission that he was informed by someone else not to attend before the Tribunal. Be that as it may, on the face of the material before the Court, the applicant was properly invited to attend the hearing and it was open to the Tribunal to proceed to determine the matter on the material before it.

2. On the face of the evidence before the Court, the applicant provided the delegate’s decision to the Tribunal, which identified information as to the expiry of the applicant’s last substantive visa, as well as the date of the application for the visa. The Tribunal was not obliged to put this information to the applicant as it was information which the applicant had provided to the Tribunal in his application for review. There is no information identified under s 359A of the Act enlivening any obligation under that provision in these circumstances. No arguable case of jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant mandatory criteria and there has been nothing identified that reflects any misinformation or misapplication of the relevant criteria by the Tribunal.  No arguable case of jurisdictional error is disclosed by ground 3. 

Conclusion

1. I am satisfied the application fails to disclose any arguable case of jurisdictional error. I am satisfied this is an appropriate matter in which to exercise the Court’s power under r 44.12 of the Federal Circuit Court Rules2001. 

2. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules2001.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2018