BENISSA v Minister for Immigration

[2015] FCCA 2868

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENISSA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2868

Catchwords:
MIGRATION – Application for judicial review – application dismissed – no matter of principle.

Legislation:

Administrative Appeals Tribunal Act 1975.

Applicant: EMMANUEL BENISSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1522 of 2014

Judgment of: Judge Riethmuller

Hearing date: 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Melbourne

Delivered on: 24 September 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr Young

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No Appearance

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,416.00.

3. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1522 of 2014

EMMANUEL BENISSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 7 July 2014.  In that decision, the Tribunal determined that it did not have power to review the decision of the delegate as a proper application to the Tribunal had not been made, as a result of the failure of the Applicant to pay the fee for lodging the Tribunal application. 

2. The fee associated with the Tribunal application is $1,602.00.  The Applicant was unable to pay that fee and sought a reduction.

3. On 2 May 2014, a letter was sent to the Applicant advising him that the fee had been reduced to $802.00 and that he should pay that amount.  He did not pay that amount and says now that that was because of his financial circumstances. The Tribunal gave him a period of 14 days and then extended that to 1 July 2014 following which they made their decision on 7 July.  It is not suggested that the fee was ever paid, nor that a further extension was sought on a basis that would have realistically raised the possibility of him actually paying the fee.

4. For these reasons, it appears to me that the application is doomed to fail. 

5. In any event, it is difficult to see how the Applicant could ultimately succeed, in that he is seeking a medical treatment visa and the application for that medical treatment visa was made on 1 April 2014.  When made on shore, an application for a medical treatment visa must be filed within 28 days of the last substantive visa that a person has held.  According to the departmental records, the last substantive visa that the Applicant held was a religious worker visa which expired on 10 August 1997.

6. The Applicant says from the bar table that he understood he had a visa at least until 2009. The Applicant produced some photocopies from his passport that simply showed a visitor visa for a two-month stay and then a bridging visa thereafter.  It does not appear that there is any real basis for concluding that he had material that would reasonably lead one to conclude that he had a substantive visa until 1997.  Even if that were established, there is still the difficulty of explaining the five year period between 1997 and 2014 during which the Applicant did not make application for a medical treatment visa.

7. Ultimately it does not appear that there is a matter of discretion involved. Even if the Applicant were to have the tribunal decision overturned with respect to the fees, the tribunal decision must inevitably be to dismiss the application on the basis that the medical treatment visa application was received around five years outside the 28 day time limit. 

8. In these circumstances, it is appropriate that I make an order dismissing the application.

   [further argument ensued]

9. In this matter, the Applicant has requested that a costs order not be made on the basis that he has no assets nor any income.  The medical material indicates that he is very close to being blind as a result of glaucoma.

10. This is a particularly sad case. However, costs ordinarily follow the event and on the authorities, the unfortunate circumstances in which the Applicant finds himself are not sufficient to justify a different form of costs order.  In any event, this is largely academic as it seems there is little prospect of the First Respondent recovering costs from the Applicant given his financial circumstances. I formally order that the Applicant pay the First Respondent’s costs of $3,416.00. 

11. I note that this is a matter that was filed prior to the amendments to the Administrative Appeals Tribunal Act 1975 (Cth) with respect to the name of the Tribunal. I direct that the Second Respondent’s name be amended to the Administrative Appeals Tribunal.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 23 October 2015