Gade v Minister for Immigration and Border Protection
[2016] FCA 1006
•22 August 2016
FEDERAL COURT OF AUSTRALIA
Gade v Minister for Immigration and Border Protection [2016] FCA 1006
Appeal from: Gade v Minister for Immigration & Anor [2015] FCCA 3425 File number: QUD 3 of 2016 Judge: RANGIAH J Date of judgment: 22 August 2016 Catchwords: MIGRATION – Federal Circuit Court dismissed application for judicial review of Migration Review Tribunal decision – refusal of Medical Treatment visa – whether failure of Tribunal to adjourn proceedings unreasonable – whether the Tribunal has an obligation to refer matters to the Minister for personal intervention – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 31, 65, 351 and 363
Migration Regulations 1994 (Cth) regs 2.01, 2.03, Sch 1, cl 602.213 of Sch 2 and Criteria 3001 of Sch 3
Cases cited: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Date of hearing: 22 August 2016 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Mr B McGlade
Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
QUD 3 of 2016 BETWEEN: PREMALATHA GADE
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
22 AUGUST 2016
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
RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 21 December 2015. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the second respondent, the Migration Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”).
The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the appellant a Medical Treatment (Visitor) (Class UB) visa (“Medical Treatment visa”)
The appellant is a citizen of India. She had held a Student (Subclass 573) visa, which expired on 15 March 2012. Since then, she has held a bridging visa.
On 11 February 2015, the appellant lodged her application for a Medical Treatment visa with the Department of Immigration and Border Protection. The application stated that she needed surgery to her left wrist and hand and would require medical care in Australia until 17 February 2016.
The appellant later provided documents to the Tribunal which explained more about her injuries. On 27 July 2014, she was employed at a greenhouse at Bundaberg in Queensland and was tending to cucumbers grown on a high trellis. She fell off a trolley, sustaining a serious compound fracture of her left wrist and injuries to her hand. The appellant has since required surgery on at least seven occasions, and it is evident that she will be left with a significant disability. Her treatment has been funded by WorkCover Queensland.
The Minister’s delegate refused the appellant the grant of the Medical Treatment visa on 17 February 2015. The basis of the refusal was that the appellant had not made her application within the time required under Criteria 3001 of Sch 3 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The delegate’s decision was made pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”). Section 65(1) provides, relevantly, that if the Minister is satisfied that the criteria for a visa prescribed by the Act or Regulations have been satisfied, the Minister is to grant the visa, or, if not so satisfied, is to refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visas. Under reg 2.01 and Sch 1 of the Regulations, the prescribed classes include a Medical Treatment visa.
Section 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class. Under reg 2.03(1), the prescribed criteria include the primary criteria and any secondary criteria set out in Sch 2 of the Regulations. The criteria for the grant of a Medical Treatment visa in Sch 2 included, at the relevant time, cl 602.213, which provided, relevantly:
(3) 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 subclause 602.212(6) are not met in relation to the applicant.
…
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
The expression “substantive visa” is defined in s 5 of the Act as a visa other than a bridging visa, criminal justice visa or an enforcement visa.
Criteria 3001 in Sch 3 of the Regulations provides:
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
…
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
…
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
…
The appellant applied to the Tribunal for review of the delegate’s decision. On 6 March 2015, the Tribunal sent a letter to the appellant inviting her to appear by telephone before the Tribunal on 2 April 2015. The appellant lived in Bundaberg and the Tribunal member who was to hear the application was based in Sydney.
On 15 March 2015, solicitors acting for the appellant wrote to the Tribunal requesting that the hearing take place face to face and saying that she was prepared to travel to Brisbane or Sydney for the hearing. The solicitors indicated that the appellant’s doctor had advised that she was not fit to travel until 14 April 2015 and requested a hearing date after 15 April 2015. That request was supported by a medical certificate issued by an orthopaedic surgeon.
On 19 March 2015, the Tribunal wrote to the appellant stating that the presiding member had decided not to change the arrangements for the hearing or postpone the hearing. The presiding member had decided that there was nothing to suggest that a telephone hearing would not provide the appellant with a fair hearing. She decided that convening a video hearing with the appellant appearing in Brisbane would involve additional costs and delay because of the appellant’s medical condition. She decided that convening a face to face hearing in Sydney would also involve delay because of the appellant’s medical condition. The presiding member noted that the medical evidence did not indicate that the appellant’s participation in a telephone hearing would be prejudiced by her medical condition.
The hearing proceeded by telephone on 2 April 2015. In its reasons, the Tribunal stated that the appellant was represented by a registered migration agent, but that the agent did not participate in the hearing. The Tribunal noted that a lengthy submission had been received prior to the hearing.
The Tribunal found that the last substantive visa the appellant held was the Student visa which expired on 15 March 2012. It found that she did not hold a substantive visa at the time her application for a Medical Treatment visa was lodged.
The Tribunal found that cl 602.213(5) of Sch 2 of the Regulations applied to the appellant and that she was required to meet Criteria 3001 in Sch 3. The Tribunal noted that in order to satisfy Criteria 3001, the application for the visa must have been lodged within 28 days of the “relevant day”. The Tribunal found that the “relevant day” was 15 March 2012, the last day on which she had held a substantive visa. The application for a Medical Treatment visa was lodged on 11 February 2015, almost three years after her Student visa expired, and more than 28 days after the “relevant day”. The Tribunal held that the appellant did not satisfy Criteria 3001 of Sch 3 or cl 602.213 of Sch 2.
The appellant asked the Tribunal to refer her matter to the Minister for personal intervention. The Tribunal noted that s 351 of the Act gives the Minister discretion to substitute a decision of the Tribunal with another decision that is more favourable to the appellant, if the Minister thinks that it is in the public interest to do so. The Tribunal stated that the focus of the review had been the issue of the appellant’s visa status at the time of the application, and that it was not reasonably within the scope of the review to fully investigate the appellant’s circumstances and test the claims made and her broader circumstances. The Tribunal said that it would not refer the matter to the Minister, but noted that the appellant could make a request directly to the Minister for intervention.
The Tribunal affirmed the delegate’s decision to refuse to grant the Medical Treatment visa to the appellant.
The grounds of the appeal are as follows:
1.His Honour erred in failing to hold that the second respondent committed jurisdiction (sic) error when it refused to adjourn the hearing as requested by the Applicant.
2.His Honour erred in failing to hold that the second respondent committed jurisdictional error when it refused to exercise the discretion to refer the matter to the Minister for personal intervention pursuant to s.351 of the Migration Act 1958.
3.His Honour incorrectly formed a view that the applicant was represented by her representative which led to the incorrect inference that the applicant’s case was properly argued before the second respondent, which amounts to jurisdictional error.
The appellant was represented by lawyers before the Tribunal and before the Federal Circuit Court, but she was self-represented in this appeal. The appellant did not appear at the hearing of her appeal, nor did she file any written submissions.
The first ground of the notice of appeal alleges that the primary judge erred in failing to hold that the Tribunal committed jurisdictional error when it refused to adjourn the hearing as requested by the appellant. Before the primary judge, the appellant argued that the Tribunal’s decision to refuse a face to face hearing and to refuse an adjournment was unreasonable in the sense referred to by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In this appeal, the appellant only takes issue with the Tribunal’s refusal to grant an adjournment.
Section 363(1)(b) of the Act gives the Tribunal a discretionary power to adjourn the review from time to time.
In Li, Hayne, Kiefel and Bell JJ held at [63]:
The legislature is taken to intend that a discretionary power, statutorily confirmed, will be exercised reasonably.
Their Honours explained that legal unreasonableness can be a conclusion reached by a supervising Court without identification of an underlying jurisdictional error. Their Honours held at [76]:
As to the inferences that may be drawn by an appellate court, it was said in House v R that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
(Citation omitted.)
In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the Full Court said:
45In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law...
…
47…Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
Before the primary judge, the appellant’s lawyer argued that as a result of her injuries, the appellant was not psychologically or emotionally fit to properly present her case before the Tribunal. The lawyer acknowledged that there was no evidence before the Tribunal to support this assertion, nor was any complaint made by the appellant or her lawyer to the Tribunal that she was not fit for the hearing.
In addition, there does not seem to have been any direct request for an adjournment. In their letter of 15 March 2015, the appellant’s solicitors requested a hearing date after 15 April 2015 because the appellant wished to have a face to face hearing, but would not be able to travel until after that date. There was no request for an adjournment of the hearing in the event that the request for a face to face hearing was declined.
In its letter of 19 March 2015, the Tribunal noted that the medical evidence did not indicate that the appellant was not fit to participate in a telephone hearing, nor that her participation would be prejudiced by her medical condition.
The Tribunal provided an entirely adequate justification for its decision to proceed with the hearing on 2 April 2015. There is no substance in the appellant’s submission that the Tribunal fell into jurisdictional error by failing to adjourn the hearing.
The appellant’s second ground of appeal is that his Honour erred in failing to hold that the Tribunal committed jurisdictional error by refusing to exercise its discretion under s 351 of the Act to refer the matter to the Minister for personal intervention. Section 351(1) of the Act provides:
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The Tribunal’s core function was to review the delegate’s decision pursuant to Part 5 of the Act. The Tribunal was under no statutory obligation to consider referring the matter to the Minister. There is no provision which prevents the Tribunal from making such a referral and the Procedures Advice Manual 3, issued by the Minister, contemplates that the Tribunal may make such a referral. In this case the Tribunal declined to refer the matter to the Minister, noting that it was open to the appellant to request the Minister’s intervention herself.
Before the primary judge, it was submitted that one of the problems the appellant faced was that at the time of the Tribunal hearing, she had already made a request to the Minister for personal intervention and that it had been refused. This, it was submitted, was a reason why the matter should have been referred to the Minister. However, the appellant accepted before the primary judge that this had never been put to the Tribunal.
There are difficulties for the appellant in obtaining relief in respect of a decision which the Tribunal was under no obligation to make. In any event, in circumstances where the appellant alleges that the Tribunal failed to take into account a matter that was never put to the Tribunal, it is impossible to see how the Tribunal could have made any error.
The appellant’s third ground is that the primary judge incorrectly formed a view that the appellant was represented by her representative, which led to the incorrect inference that the appellant’s case was properly argued before the Tribunal, which is said to amount to jurisdictional error. It is difficult to understand precisely what is meant by this ground.
The Tribunal noted in its reasons that the appellant was represented by a registered migration agent, but that the agent did not participate in the hearing. It is difficult to see how any incorrect view by the primary judge as to the appellant’s representation could constitute a material error.
In these circumstances, there is no substance in any of the appellant’s grounds of appeal. The appeal must be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 25 August 2016
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