Chaudhari v Minister for Home Affairs
[2018] FCA 1363
•14 August 2018
FEDERAL COURT OF AUSTRALIA
Chaudhari v Minister for Home Affairs [2018] FCA 1363
Appeal from: Chaudhari v Minister for Immigration & Anor [2018] FCCA 863 File number: QUD 133 of 2018 Judge: RANGIAH J Date of judgment: 14 August 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant Medical Treatment Visa – where appellant failed to respond to invitation to give information – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 349(2), 359(2), 359A(1), (4), 359B, 359C, 360(1), (2), 363A and 424A
Migration Regulations 1994 (Cth) Sch 2, cl 602.213
Date of hearing: 14 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Mr G King of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 133 of 2018 BETWEEN: DINESHKUMAR JOITABHAI CHAUDHARI
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
14 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)RANGIAH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 22 February 2018 dismissing the appellant’s application for a review of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 14 September 2016. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the appellant the grant of a Medical Treatment (Visitor) (Class UB) Visa.
The Tribunal’s decision record included the following passages explaining the delegate’s decision and the steps taken by the Tribunal before making its decision:
3.The delegate refused to grant Mr Chaudhari the visa because his visa application was received on 16 May 2016, more than 28 days after Mr Chaudhari’s last substantive visa had ceased, and criterion 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations) was therefore not met as required.
4. Mr Chaudhari lodged an application for review of the delegate’s decision with the Tribunal on 3 June 2016.
5. The Tribunal wrote to Mr Chaudhari on 30 August 2016, pursuant to subsection 359(2) of the Act, inviting him to provide information addressing the requirement to meet the criterion specified in item 3001 of Schedule 3 to the Regulations. The invitation was sent to the last email address provided by Mr Chaudhari and Mr Chaudhari was advised that, if the information was not provided in writing by 13 September 2016, and no extension of time had been granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and that Mr Chaudhari would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
6. Mr Chaudhari failed to provide that information within the prescribed time for responding to the statutory invitation. The power to formally invite, in writing, an applicant to give information under subsection 359(2) of the Act has been exercised. Certain consequences flow from the failure of the applicant to respond to the invitation. These consequences were set out in the body of the letter to Mr Chaudhari on 30 August 2016.
7. Having not provided the information requested in the subsection 359(2) invitation, Mr Chaudhari loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: section 360(3) of the Act.
8. The Tribunal may now make a decision on the review without taking any further action to obtain the information: subsection 359C(1) of the Act. The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied that Mr Chaudhari has been given a reasonable opportunity to address an essential requirement for the grant of the visa, criterion 3001, and has not done so.
The Tribunal’s decision record went on to set out the Tribunal’s reasons for affirming the delegate’s decision:
11.The criteria for the medical treatment visa include clause 602.213 which 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 over 50 years of age and 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, which are extracted in the attachment to this decision, are met.
12.As noted in the delegate’s decision, a copy of which was provided by Mr Chaudhari with his application to the Tribunal, Mr Chaudhari lodged the application for this visa in Australia on 16 May 2016 and did not hold a substantive visa at the time, his last substantive visa having ceased on 30 August 2012. Mr Chaudhari is 38 years of age and therefore cannot meet clause 602.212(6). On the basis of the information contained in the delegate’s decision record, the Tribunal is also satisfied that Mr Chaudhari did not hold a substantive visa at the time of the visa application, and the last such visa that he held was a Subclass 572 visa and not a Subclass 403 or 426 visa. In these circumstances the issue in this case is whether Mr Chaudhari satisfies criterion 3001 of Schedule 3 to the Regulations.
Is criterion 3001 met?
13.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 3001(2), as set out in the attachment to this decision, and in this case is 30 August 2012, the date upon which Mr Chaudhari’s last substantive visa ceased, as is noted in the delegate’s decision. The application for the visa on 16 May 2016 was not within 28 days of 30 August 2012. On the evidence before the Tribunal, Mr Chaudhari lodged an application for this visa more than 28 days after his last substantive visa ceased. Mr Chaudhari therefore does not satisfy criterion 3001 of Schedule 3 to the Regulations for the purposes of clause 602.213 of Schedule 2 to the Regulations. There is therefore no need for the Tribunal to consider the remaining Schedule 3 criteria.
The applicant applied for review of the Tribunal’s decision to the Federal Circuit Court relying upon the following grounds:
1. The second respondent acted on assumption that the applicant had received its invitation to appear before the Tribunal. On account of mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequence Tribunal decision is not a decision at all in law.
2. My point is that having missed the invitation letter, 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, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.
(Errors in original.)
As to the first ground, the primary judge found that the Tribunal had complied with s 359(2) of the Migration Act 1958 (Cth), which specifies the way in which an invitation to a person to give information must be given, and s 359B, which sets out other requirements of such an invitation. His Honour also found that in the absence of any response by the appellant to the invitation, the Tribunal was entitled to proceed under s 359C to make a decision on the review without taking any further action to obtain the information. His Honour found that there was no requirement in these circumstances under s 360(1) to invite the appellant to appear before the Tribunal and that, in fact, the effect of s 363A was that the Tribunal had no power to do so.
As to the second ground, the primary judge noted that for a Pt 5-reviewable decision, the applicable provision was s 359A of the Act, not s 424A. His Honour found that the only relevant information the Tribunal relied on was contained in the delegate’s decision and that it was the appellant who had provided a copy of that decision to the Tribunal with his application for review. Accordingly, s 359A(4)(b) applied and the Tribunal was not required under s 359A(1) to give particulars of the information to the appellant and invite him to comment or respond. The primary judge also concluded that the Tribunal was correct to decide that the appellant had not satisfied Sch 2, cl 602.213 of the Migration Regulations 1994 (Cth). His Honour dismissed the application with costs.
Before this Court, the appellant relies upon the following grounds:
1.The Federal Judge failed to consider that the the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Act;
2.the Tribunal failed to exercise its jurisdiction: it was an error for the Tribunal to assess the application without allowing applicant to present his arguments; and
3.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
(Errors in the original.)
The appellant did not appear at the hearing of the appeal. Neither has he filed any written submissions. Accordingly, the appeal can only be determined on the basis of the grounds set out in the notice of appeal.
It is difficult to understand what is meant by the first ground of appeal and it is unparticularised. The third ground is also unparticularised. I will interpret those grounds as being the same in substance as the second ground.
I understand the second ground to mean that the Tribunal erred by deciding the application without inviting the appellant under s 360(1) of the Act to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review.
I agree with the primary judge’s analysis of the statutory provisions. I agree that in circumstances where the appellant failed to respond to an invitation under s 359(2) to give information, the Tribunal was permitted under s 359C to make a decision without taking any further action to obtain the information. The effect of s 360(2)(c) was that the Tribunal was not required to give an invitation to the appellant under s 360(1) and was entitled to proceed to make its decision under s 349(2) to affirm the delegate’s decision.
I cannot discern any error in the judgment of the Federal Circuit Court or the decision of the Tribunal.
The appeal must be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 12 September 2018
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