Boutros v Minister for Immigration

[2018] FCCA 2549

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOUTROS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2549

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal failed to identify the relevant law – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application dismissed under r 44.12 of the Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.602.213, 602.216

Applicant: MARWAN HANNA BOUTROS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3576 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 K Morris
Clayton Utz

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 10 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3576 of 2017

MARWAN HANNA BOUTROS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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”) made on 23 October 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant applied for the visa on 4 April 2017. The delegate refused to grant the visa and was not satisfied the applicant met the Schedule 3 criteria for the purpose of cl 602.213 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. The applicant applied for review on 1 May 2017. On 10 August 2017, the Tribunal wrote to the applicant inviting the applicant to attend a hearing on 23 October 2017 to give evidence and present arguments. On 20 October 2017, the Tribunal received a letter from the applicant indicating he was unable to attend the hearing and the Tribunal found it was unclear whether he was requesting postponement of the hearing.

4. On 20 October 2017, an officer of the Tribunal contacted the applicant and spoke with him with the assistance of an Arabic interpreter. The applicant indicated he did not want the hearing to be postponed and requested that a decision be made on the papers. In those circumstances the Tribunal cancelled the hearing and proceeded to determine the matter on the papers.

5. The Tribunal referred to the criteria that the applicant had to meet under cl 602.213 of the Regulations. The Tribunal found the applicant did not meet the criteria under cl 602.212(6) of the Regulations and that the applicant had to meet the criteria under Schedule 3 criteria 3001 which the Tribunal identified.

6. The Tribunal identified that the applicant’s last substantive visa ceased on 25 November 2007 and that the relevant date was 25 November 2007. The Tribunal found that a valid application for a medical treatment visa was made on 4 April 2017. However, the application was not made within 28 days of 25 November 2007. It was in those circumstances the Tribunal found the applicant did not satisfy the criteria under cl 602.213 of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 20 November 2017. On 14 December 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. On 15 August 2018, this Court made orders fixing the matter today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (“the Rules”). The Court also made an order giving the applicant an opportunity to put on submissions and affidavit evidence. No such documents were filed.

3. At the commencement of the hearing the Court explained to the applicant the nature of the hearing under r 44.12 of the Rules and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. When invited to put submissions from the bar table, the applicant indicated that he wanted the Court to look at the papers and that his situation was very bad now. This Court does not have the power to decide the matter on compassionate grounds or on discretionary grounds. This Court has no power to revisit the merits. The Court’s power is confined to considering whether or not the Tribunal’s decision is the subject of a relevant legal error. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal refused my case as a result that I did not hold a substantive visa. The decision is affected by an error because the Tribunal failed to take into consideration the changes to the law as from 1 July 2017 I do not have to satisfy the request for a substantive visa.

   2. I will provide further details when I receive copy of my file.  

Ground 1

1. The applicant correctly identified that he did not hold a substantive visa as was required under the mandatory criteria. The applicant suggests in ground 1 that there was a change in the law. No such change is identified. On the face of the material before the Court, the Tribunal correctly identified the relevant law and made findings that were open to the Tribunal on the material before the Tribunal.

2. In the circumstances of the present case, given the communications with the applicant on 20 October 2017, it was reasonable and lawful for the Tribunal to proceed to determine the matter where the applicant indicated he did not want to have a hearing and that he wanted the decision made on the papers.

3. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court the Tribunal complied with the requirements of procedural fairness in the conduct of the review. Given the communications by the applicant to the officer on behalf of the Tribunal requesting the Tribunal to proceed to determine the matter on the papers, the exercised power of the Tribunal to do so cannot be said to be the subject of an argument that this was legally unreasonable. No arguable case of jurisdictional error is disclosed by ground 1.

Ground 2

1. Ground 2 is an assertion of further details to be provided which is unsupported and does not disclose any arguable case of jurisdictional error.

Conclusion

1. I am satisfied the application fails to disclose any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018