BHANDARI v Minister for Immigration
[2018] FCCA 1627
•14 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHANDARI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1627 |
| Catchwords: MIGRATION – PRACTICE & PROCEDURE – Application for summary dismissal of proceeding for judicial review o decision made by the Administrative Appeals Tribunal affirming decision not to grant applicant medical treatment visa whether applicant has no reasonable prospect of successfully prosecuting proceeding – proceeding dismissed. |
| Legislation: Australian Constitution, s.75(v) |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 116 |
| Applicant: | MILAN BHANDARI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3312 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 14 June 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2018 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitor for the first respondent: | Mr H Gao |
ORDERS
Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) the proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding set in the amount of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3312 of 2017
| MILAN BHANDARI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court is an application brought by the first respondent (Minister) for an order pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) which provides as follows:
The Court . . . may order that a proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceeding if the Court . . . is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim . . .
This rule closely reflects s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act).
The Minister brings the application in relation to a proceeding commenced by the applicant with this Court on 26 October 2017. In that proceeding the applicant seeks judicial review of a decision made by the second respondent (Tribunal) not to grant the applicant a Medical Treatment (Class UB) visa (MT visa). The application for judicial review is brought under s.476(1) of the Migration Act 1958 (Cth) (Act) which confers on this Court the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution.
There would appear to be no doubt that r.13.10 of the FCC Rules is capable of applying to applications for judicial review brought in this Court under s.476 of the Act. I say that because the Full Federal Court in at least one case has considered the application of s.17A(2) of the FCC Act to such applications; and the case I have here in mind is Shrestha v Migration Review Tribunal.[1] In that case the Full Federal Court noted that s.17A of the FCC Act is effectively the same as s.31A of the Federal Court Act 1976 (Cth) (and, as I have already noted, s.17A(2) of the FCC Act is, in substance, the same as r.13.10(a) of the FCC Rules). The Full Federal Court noted that the power conferred by s.31A of the Federal Court Act 1976 (Cth) is to be exercised having regard to the principles stated by the High Court in Spencer v Commonwealth of Australia.[2] The Full Court said:[3]
As counsel for the Minister pointed out, the plurality (Hayne, Crennan, Kiefel, and Bell JJ) at [55]-[56] emphasised that section 31A of the FCA Act does not require the court to consider whether a proceeding is “bound to fail” or “cannot possibly succeed” and that “it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Their Honours added at [60] that in determining whether the summary dismissal power should be exercised, full weight should be given to the expression “no reasonable prospect” and a court may exercise power under section 31A “if and only if satisfied that there is ‘no reasonable prospect of success’”.
[1] [2015] FCAFC 87
[2] (2010) 241 CLR 116
[3] [2015] FCAFC 87, at [73]
The question that arises on the Minister’s application that is before me now, therefore, is whether I am satisfied that the proceeding the applicant has brought for judicial review of the Tribunal’s decision affirming the delegate’s decision not to grant the applicant an MT visa has no reasonable prospect of success. Stated precisely in terms of r.13.10 of the FCC Rules, the question is whether I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding for an order quashing the Tribunal’s decision affirming the delegate’s decision not to grant the applicant an MT visa. The answer to that question requires me to consider the facts out of which the application arises, the relief the applicant seeks, and the grounds on which he seeks the relief. Before I do so, it would be useful to briefly set out the procedural history of the matter, if for no other reason than to demonstrate that the applicant has had ample opportunity to consider grounds he may have to set aside the Tribunal’s decision.
The applicant commenced the proceeding on 26 October 2017. The matter came before a Registrar on a first court date on 4 December 2017. On that day directions were made including a direction that the Minister file and serve a court book. The Minister was required to do that by 12 January 2018, and there is nothing to suggest that that order was not complied with. The directions also provided the applicant an opportunity to file and serve an amended application by 16 February 2018. The applicant has not filed any amended application. And the final matter to note about the history of the proceeding is that the Minister filed his application for dismissal on 23 May 2018.
I then turn to the background out of which the application for judicial review arose. The starting point is the applicant lodging an application for an MT visa on 31 May 2017. In the application the applicant stated he is a national of Nepal. At the time he applied for the MT visa the applicant held a bridging visa. The evidence that is before me indicates that the applicant had held a bridging visa since at least 28 March 2011. Immediately before 28 March 2011 the applicant held a student visa class TU-572. The basis of what I have just said is to be found at page 12 of the court book. It is a copy of a record maintained by the Department of Immigration and Border Protection, and it sets out the various visas the applicant has held. There is a reference there to visa class WC-030, and that is a reference to a class of bridging visas provided for in schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) from time to time.
When one turns to the definition of “substantive visa” in s.5 of the Act, one there sees that the expression is defined to mean a visa other than a bridging visa or a criminal justice visa or an enforcement visa. The point of my mentioning these matters is that, as at the date on which the applicant lodged his application for an MT visa, the applicant held a bridging visa which meant that he did not hold a substantive visa, and that this was the situation since at least immediately after 28 March 2011. Putting it another way, the last substantive visa the applicant held was a student visa which had ceased on 28 March 2011.[4]
[4] CB12-13
In those circumstances to have been entitled to the grant of an MT visa, the applicant was required to satisfy, among other things, cl.602.213(5) of Schedule 2 to the Regulations. That is so because of cl.602.213(3) which provided that 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 cl.602.212(6) are not met in relation to the applicant. There is no question that the requirements described in cl.602.212(6) were not met in the case of the applicant; and that then leads me to set out cl.602.213(5), which simply required that an applicant satisfies schedule 3 criteria 3001, 3003, 3004, and 3005. What is relevant is cl.3001(1). That required that the application be validly made within 28 days after the “relevant day (within the meaning of subclause (2))”.
Subclause 3001(2) contained various possible relevant days. What is relevant is the day provided for in cl.3001(2)(c), and that applies where an applicant ceased to hold a substantive visa or a criminal justice visa on or after 1 September 1994 or entered Australia unlawfully on or after 1 September 1994. In those circumstances, the relevant day is the later of the last day when the applicant held a substantive or criminal justice visa or the day when the applicant last entered Australia unlawfully. In the circumstances of the applicant what that meant was that in order to have complied with condition 3001 he would have needed to apply for the medical treatment visa within 28 days after his student visa, being the last substantive visa he held, ceased to have effect.
That was the view of the delegate; and the delegate, having concluded that the applicant did not lodge his application for an MT visa within 28 days, found the applicant did not satisfy condition 3001, and, for that reason, refused to grant the applicant an MT visa. That led to the applicant applying to the Tribunal for a review of the delegate’s decision. The Tribunal noted that cl.602.213 applies to applicants who were in Australia at the time the visa application was made. The Tribunal said:[5]
[5] CB48-49
7. Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
8. In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005.
Is criterion 3001 met?
9. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.
10. On the information before it, being the department movement records, confirmed by the applicant at hearing, it finds that the applicant’s last substantive visa, Subclass 572, ceased on 28 March 2011. The present application was made on 31 May 2017.
11. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. For these reasons, the applicant does not satisfy cl.602.213.
12. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
I then turn to the application for judicial review filed by the applicant. That application raises three grounds and these are as follows:
1. I do not agree with the Tribunal Member’s decision because I believe it failed to deal with my application carefully.
2. The substantial conclusion reached by the Tribunal member was poorly justified.
3. I am a victim of the Tribunal Member’s erroneous decision.
Mr Gao appeared on behalf of the Minister and relied on written submissions. He submitted the Tribunal was plainly correct and there was no arguable case for submitting the Tribunal erred in any way in concluding that it was a condition of the grant of a medical visa that the applicant lodge his application for an MT visa within 28 days of the date on which the applicant last held a substantive visa, and that the applicant failed to satisfy that condition.
Before I turn to the submissions the applicant made, who was not legally represented, although he was assisted by an interpreter, I explained to the applicant the history of the matter. I explained to him also the grounds on which the Tribunal affirmed the delegate’s decision and, in particular, that it was a condition of the grant of an MT visa that the application for such visa be made within 28 days after the applicant ceased holding a substantive visa, and that the last substantive visa the applicant held was the student visa which ceased on 28 March 2011.
I asked the applicant whether he claimed that the Tribunal’s decision was wrong or it did something wrong in considering the applicant’s application in the manner that it did. The applicant said he was having mental problems, and that is why he applied for an MT visa, and that is why he has appealed to this Court. I then took the applicant to each of the grounds stated in the application. In relation to ground 1 I asked the applicant why he said the Tribunal failed to deal with his application carefully. He said that on a humanitarian basis, because of his sickness, he could not go back to Nepal. When I asked the applicant in relation to ground 2 why he submitted the Tribunal member a poorly justified the decision, the applicant said it did not consider his mental stress, being the medical condition which he set out in his application. In relation to ground 3, the applicant, in effect, repeated that the Tribunal failed to consider the mental condition.
Mr Gao, in responding to the applicant’s submissions, drew my attention to paragraph 4 of the Tribunal’s decision. The Tribunal there referred to the hearing it had with the applicant. The Tribunal noted that at the hearing the Tribunal explained the issue arising in the case, namely whether the applicant can meet PIC3001 which required the application to be made within 28 days after the expiry of his last substantive visa. It noted that the applicant said he is suffering from depression, and that is why he applied for his visa. He said he did not know about this criteria regarding the 28 days until now, and he had nothing further to say.
The question, then, is whether on the basis of all these matters I am satisfied that the proceeding the applicant has brought has no reasonable prospect of success. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. There is no doubt that a criterion for the granting of the MT visa included a requirement that it be made no more than 28 days after the applicant’s last substantive visa ceased to have effect. There is no question that the last substantive visa the applicant held was the student visa which ceased to have effect on 28 March 2011. There is no doubt that the application the applicant brought for an MT visa was more than 28 days after the date on which he last held a substantive visa.
There is also no doubt that the Tribunal had no discretion to vary that criterion. It is true, as the applicant contends, that the Tribunal did not consider the medical conditions the applicant claimed in his application he suffered from, and it may well be that the applicant suffers from medical conditions which impose hardship on him if he were to return to Nepal; but those matters were not relevant in circumstances where the Tribunal found that an essential criteria to the granting of the MT visa had not been met, that essential condition being that the application the applicant lodged had to be lodged within 28 days of the day on which he last held a substantive visa.
As I have already found, I am satisfied the Tribunal made no error in proceeding on the basis that it did, and that it correctly understood the tasks it had to undertake, and it undertook those tasks on the basis of a correct understanding of the relevant criteria that it did apply. In those circumstances I propose to make the order sought in the application filed by the Minister and I will do so in a moment after I hear submissions on costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 22 June 2018
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