Chaudhari v Minister for Immigration
[2018] FCCA 863
•22 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAUDHARI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 863 |
| Catchwords: MIGRATION – Medical treatment visa refused – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359B, 359C, 360, 363A, 379A, 424A. Migration Regulations 1994 (Cth), Sch.2, cl..602.213; Sch.3 |
| Cases cited: Singh v Minister of Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1291 |
| Applicant: | DINESHKUMAR JOITABHAI CHAUDHARI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 926 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 22 February 2018 |
| Date of Last Submission: | 22 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 22 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
That the Application filed 7 October 2016 be dismissed.
That the Applicant pay the First Respondent’s costs of these proceedings in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 926 of 2016
| DINESHKUMAR JOITABHAI CHAUDHARI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 22 February 2018 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The applicant in this case was born in India on 27 September 1977. He was in fact born in the state of Gujarat. There is no evidence before the Court to confirm when it was that the applicant actually first arrived in Australia, with the assistance of a Gujarati interpreter this morning, the applicant has informed the Court that it was in 2009 and in the absence of any submission to the contrary or evidence to the contrary, I am willing to accept that that is the case. The applicant arrived in Australia in 2009. There is no evidence as to what precise visa he had at that point in time, what the Court does have is evidence that the applicant’s last substantive visa had ceased to be in effect on 30 August 2012.
The matter that is before the Court today relates to an application made by the applicant on 16 May 2016, so almost four years after his last substantive visa had ceased to be in effect – the applicant applied for a medical treatment visa. The particulars contained in the application itself of course are contained in the Court book, which is exhibit 1. Under question 18, which is:
“Briefly describe the medical treatment in Australia you have arranged and the estimated cost.”
And the applicant has answered:
“I am sleeping too little and always suffering from sadness and hopelessness. I need therapist counselling. I have not received exact amount cost yet.”.
He did, in fact, particularise the duration of the medical care that he was hoping to receive, stating in answer to question number 17 in the application form that it would be from 27 May 2016 to 20 July 2016.
On 19 May 2016 the Minister’s delegate refused to grant to the applicant the medical treatment visa that he was seeking. It was said that the applicant did not satisfy criterion 3001 of schedule 3 to the Migration Regulations 1994. Criterion 3001 of schedule 3 is contained at page 66 of the Court book. It requires that the visa application being made by the applicant must have been made within 28 days after – in this case – after the day on which the last substantive visa ceased to be in effect. As I noted earlier, the last substantive visa held by the applicant in this case had ceased to be in effect on 30 August 2012 and the medical treatment visa application was not lodged until almost four years later, on 16 May 2016. The delegate came to the conclusion, to which I have referred.
On 3 June 2016 the applicant applied to the tribunal for a review of the delegate’s decision. On 30 August 2016 the tribunal then wrote to the applicant and invited him, pursuant to section 359 subsection (2) of the Migration Act1958 (Cth) (“the Act”), to provide further information to address this particular criterion 3001. The applicant was required by that invitation to provide this information by 13 September 2016. The tribunal did not receive any response to the invitation, and the tribunal went ahead and affirmed the delegate’s decision. The date of that decision by the tribunal affirming the earlier decision was 14 September 2016.
The applicant filed an application in the Federal Circuit Court of Australia on 7 October 2016 seeking judicial review of the tribunal’s decision. On 21 November 2016 the Court ordered that the applicant was to file and serve any amended application upon which he intended to rely and he was required to give complete particulars of each ground by 9 January 2017. The applicant has not filed any amended application, so the Court has before it the application filed by the applicant on 7 October 2016. In the application the applicant has listed two 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.”
The first ground indicates to the Court that the applicant didn’t understand the nature of the communication or understand precisely what was being sought. He seems to have been under the mistaken assumption that he was being invited to appear before the tribunal. In fact, what had happened was that the tribunal had invited the applicant to provide information pursuant to section 359 subsection (2) of the Act. In the first ground the applicant also refers or uses the following words:
“…On account of mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty….”
There are no particulars of what that mistake was or indeed who the third party was. There was no representative appointed.
It seems to me that the essential part of this matter relates to whether the invitation to provide information was a valid invitation and whether the tribunal correctly then applied the relevant provisions relating to its procedural fairness obligations, as set out in division 5 of part 5 of the Act. In order for it to be a valid invitation, it was necessary that the invitation complied with the requirements set out in the Act, in particular in sections 359 subsection (3) and in section 359B.
By section 359 subsection (3) the tribunal was required to send the invitation by one of the methods that are set out in section 379A of the Act. The tribunal sent the invitation to the applicant by email to the email address that had been provided to the tribunal by the applicant in the review application. It is therefore clear enough that the invitation complied with the requirements of section 359 subsection (3) and section 379A and in particular subsection (5).
In section 359B there are various subsections which must be complied with. In particular, section 359B subsection (1) requires the invitation to specify the way in which the information may be given. In this particular case it was specified that the information was to be provided in writing and if it was not to be in English, it had to be accompanied by an English translation. In a decision entitled Singh v Minister of Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1291, Judge Lucev came to the conclusion that the provision of an invitation in those terms was sufficient to satisfy the requirements of section 359B subsection (1).
In subsection (2) of section 359B there was also a requirement that a specific timeframe be required by which the information was to be provided. As has already been seen, this was done. The date was 14 days after the invitation, which that date was to be 13 September 2016. This was the deadline. There’s nothing before the Court; there is no evidence that the applicant requested any extension of time. In any event, I note that the tribunal, in fact, cannot grant an extension of time if the application for the extension is made after the expiration of the prescribed period. In that regard I note cases such as M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 and the case of Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40. Based on the evidence therefore before the Court in relation to the invitation, the tribunal complied with all the relevant statutory requirements.
As to the procedural fairness obligations, it is necessary to have regard to a number of sections of the Migration Act, including section 359 subsection (2), section 359B subsection (2), section 359C subsection (1), section 360 subsection (2)(c), subsection (3), section 363A:
“359 (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information
...
359B (1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances…
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period
…
359C (1) If a person:
(a) is invited in writing under section 359 to give information; and
b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
…
360 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
…
363A If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person”
On a reading of these sections together, it’s apparent that the applicant was, in the circumstances of this case, in fact not entitled to appear before the tribunal and therefore the tribunal did not have the power to permit the applicant to appear before it. I refer back to the decision in Hasran v Minister for Immigration and Citizenship (supra), especially at paragraphs 25, 26, 27 and 28 and a decision of Bakshi v Minister for Immigration and Border Protection (2015) 299 FLR 232; [2015] FCCA 2092 per Judge Smith.
The difficulty for the applicant in this case is, having been invited to provide information and having been given the deadline by which the information had to be provided, his failure to provide information within the deadline had significant consequences for him because it meant that the tribunal had the power to make a decision on the review without taking any further action to obtain the information. Not only that, but by section 360 subsection (2)(c), the actual obligation to invite the applicant to appear before the tribunal does not even apply if the applicant has not provided the information within the specified period. Section 360 subsection (3) in fact says that the applicant is not entitled to appear before the tribunal if the applicant has not provided the information within the specified period.
Further, I note section 363A of the Migration Act provides that:
“If a provision in part 5 of the Act states that a person is not entitled to do something then, unless there is another provision which expressly provides otherwise, the tribunal does not have the power to permit the person to do that thing.”
That is what was decided by Judge Smith in the Bakshi v Minister for Immigration and Border Protection (supra) decision. It is in fact correct to say that, not only was the tribunal not obliged to invite the applicant to appear before it, but the tribunal in fact was not permitted to invite the applicant to appear before it because he had not provided the information that had been requested within the specified period.
Ground 2 of the application refers to, amongst other things, a failure to comply with section 424A of the Act. In fact, the relevant provision for a part 5 reviewable decision in this case would be section 359A. Even if the Court works on the basis that the correct section of the Act had been pleaded, what has to be kept in mind here that the only relevant information that formed the reason or part of the reason for affirming the decision was the fact that the last substantive visa held by the applicant had in fact ceased to be in effect on 30 August 2012.
It was in fact the applicant who gave a copy of the delegate’s decision record to the tribunal. It was appended to his application to the tribunal and that’s contained in the Court book at page 34. So the applicant, in fact, gave the information to the tribunal for the purpose of the application for the review. Accordingly, that information that he gave fell within the exception to the obligation in subsection 359A subsection (1) and that is set out in section 359A subsection (4)(b).
There are cases which admittedly do relate to section 424A subsection (3)(b), that section is in the same terms as section 359A subsection (4)(b) and those cases, to which I will make reference shortly, have held that an applicant can incorporate material so that it becomes part of the information given by him for the purpose of the application for review. Those cases include SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 and VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271.
Not only that; this principle has been extended and includes also a situation where information contained in the delegate’s actual decision record where that record has been provided to the tribunal, annexed, as it were, or appended to an application for review, as occurred here. In this regard I note a decision of the Federal Court entitled Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241. It is not relevant that the applicant might not even intend to rely upon that information for the purpose of the review. By giving the actual delegate’s decision to the tribunal, as occurred in this case, it was the applicant himself who had given the tribunal all of the information in the delegate’s decision. As I noted earlier, it therefore follows that in the particular circumstances of this case, the tribunal was not obliged to send the applicant an invitation to comment on or respond to the information pursuant to section 359A subsection (1) and accordingly the tribunal did not err in the circumstances of this case.
I have come to the conclusion that there was no error in the tribunal’s finding that the applicant did not satisfy the criteria for a medical treatment visa. There is no question whatsoever that the applicant was required to apply for a medical treatment visa within 28 days after the last day when the applicant held a substantive visa. As noted earlier in this decision, the applicant had last held a substantive visa on 30 August 2012. Accordingly, if he was going to apply for a medical treatment visa, he had to do so on or before 27 September 2012. As the Court has already noted, he did not in fact apply until 16 May 2016. It is in fact the case that the tribunal was correct to find that the applicant had not satisfied the regulations had not satisfied clause 602.213 and the application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 19 April 2018
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