Feng v Minister for Immigration

[2018] FCCA 187

FEDERAL CIRCUIT COURT OF AUSTRALIA

FENG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 187

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment Visitor (Class UB) visa – the Tribunal’s reasons reflect a proper consideration of the statutory criteria – on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 3

Applicant: ZHONG GUANG FENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2284 of 2017

Judgment of: Judge Street

Hearing date: 29 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Sydney

Delivered on: 29 January 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2284 of 2017

ZHONG GUANG FENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 June 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment Visitor (Class UB) visa. 

2. The applicant arrived in Australia on a visitor visa granted on 15 February 2003. That visa expired on 15 May 2003. The applicant applied for the medical visa on 29 March 2017. There was no proper basis for that application and that application was doomed from the time the applicant filed it. It was a vexatious application and should not have been filed. The bringing of the proceedings in this Court was vexatious and had no prospect of success.

3. The grounds in the application are as follows:

   1. The second respondent has operated the group hearing in assessing my appeal, my privacy has been deprived which the second respondent has breached the private Act.

   2. The first and second respondents have not requested me to provide all the evidence to support my application; it is very unfair to me.

   3. The first respondent refused the application immediately without considering my reason and circumstance to waive the schedule 3.

   4. The first and second respondents have bias against me that the decision and the hearing are very short.

Ground 1

1. The proposition of a breach of the Privacy Act or Private Act is without substance. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant was sent an invitation by the Tribunal to appear at a hearing on 21 June 2017 by letter dated 24 May 2017. That letter expressly referred to giving the applicant an opportunity to provide additional documents or information at that hearing. The applicant attended that hearing to give evidence and present arguments.

2. 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. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant submitted that there was a failure by the Tribunal to consider waiving the Schedule 3 criteria. No such discretion applied in the circumstances of the present case. The applicant failed to meet mandatory criteria that meant that this application had no prospect of success before the Tribunal and the filing of the proceedings in this Court was vexatious by the applicant and doomed to failure.

2. It is unfortunate that the proceedings were not the subject of an expeditious application for summary dismissal at the time the application was filed in this court. Accordingly, ground 3 fails to make out any jurisdictional error. 

Ground 4

1. In relation to ground 4, the applicant complained of bias by the Tribunal by reason of the reasons of the Tribunal being very short. The Tribunal’s reasons identify complying with the statutory criteria and then identify the relevant criteria for the grounds of the subclass medical treatment visa.

2. Part of the reasons included identifying the criteria of 3001 in Schedule 3 to the Migration Regulations 1994 (“the Regulations”) in that the visa application had to have been lodged within 28 days of the relevant day. The relevant day in this case was 15 May 2003. 

3. The Tribunal’s reasons reflect a proper and sufficient consideration of the statutory criteria for the parties to understand the findings, bases of the findings on the evidence and the reasoning of the Tribunal for the outcome of the determination. The reasons are also sufficient to provide review for jurisdictional error. There is nothing on the face of the material before the Court to suggest that the Tribunal approached the matter other than with an open mind reasonably capable of persuasion.

4. The short reasons of the Tribunal in the circumstances of the present case are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 4. 

5. As the application fails to make out any jurisdictional error the application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 February 2018