Gujjar v Minister for Immigration & Anor (No.2)
[2018] FCCA 2425
•28 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUJJAR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 2425 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for reinstatement of application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of delegate not to grant a Medical Treatment (Subclass 602) (Visitor) visa – Applicant needed extension of 18 days outside the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth) – applicant made application for Medical visa four years and eleven months after the time he was required to apply for it – no appearance by applicant at scheduled final hearing of the application for judicial review filed in this Court – no reasonable or adequate excuse for failing to appear at scheduled final hearing – no utility in extending time to bring present proceeding – application for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30, 477 Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Gujjar v Minister for Immigration & Anor [2018] FCCA 2074 |
| Applicant: | ABDUL RASHID GUJJAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3282 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms C. Saunders |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed by the Applicant in this Court on 6 August 2018 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to the Application in a Case in the sum of $1,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3282 of 2017
| ABDUL RASHID GUJJAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a male citizen of Pakistan now aged 50 years, having been born on 5 September 1967.
By Application filed in this Court on 24 October 2017 he sought to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 August 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 May 2017 refusing to grant to him a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa).
His Application to this Court was filed some 18 days outside the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (the Act). Accordingly, the Applicant would need an extension of time under s.477(2) of the Act.
An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: see cl.602.211 in Sch.2 to the Migration Regulations 1994 (Cth) (Regulations). The Applicant applied for the Medical visa on 27 April 2017. He identified in answer to questions 17 and 18 of his Medical visa application form that he was suffering from an anal fistula which gets infected, that he was under treatment and needed surgery with an estimated cost of $5,000 and that this would take place during the period 13 March 2017 to 31 August 2017.
The Applicant’s last substantive temporary visa (see the definition of substantive visa in s.5 and temporary visa in s.30(2)(a) of the Act) was a Transit (Temporary) (Class TX) (Subclass 771) visa which ceased on 22 May 2012 and accordingly he did not hold a substantive temporary visa at the time of his application for a Medical visa on 27 April 2017.
At the date of decision the Applicant had to satisfy cl.602.213 of Sch.2 to the Regulations, namely:
602.213
(1) Subclause (2) applies if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant held 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.
(2) The substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(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.
(4) The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5)The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
(emphasis supplied)
As the Applicant did not hold a substantive temporary visa at the time of his application for the Medical visa on 27 April 2017 and could not meet the requirement stated in cl.602.212(6)(b) of Sch.2 to the Regulations in that he had not turned 50 years of age, it followed, by force of cl.602.213(3), that cl.602.213(5) applied.
Consequently, it was necessary for him to satisfy Criterion 3001 in Sch.3 to the Regulations. Relevantly, Criterion 3001 required that his application for the Medical visa must have been made within 28 days after the “relevant day”, which was the last day on which he held the substantive visa, namely 22 May 2012: see Criterion 3001(1) and 3001(2)(c)(iii). Unfortunately for the Applicant he was some 59 months, or four years and 11 months late when he applied for the Medical visa on 27 April 2017.
Decision of Delegate
In her Decision Record of 1 May 2017, the Delegate had regard to cls.602.213 and 602.212(6) of Sch.2 to the Regulations and Criterion 3001 in Sch.3. She was satisfied that the Applicant last held a substantive visa on 22 May 2012 and had applied for the Medical visa on 27 April 2017. In those circumstances the Delegate found that the Applicant did not satisfy cl.602.213(5) because he could not satisfy Criterion 3001. Accordingly, the Delegate refused to grant the Medical visa to the Applicant.
Decision of Tribunal
The Applicant applied for merits review of the adverse decision of the Delegate on 18 May 2017 and appeared at a hearing by telephone before the Tribunal on 31 August 2017 to give evidence and present arguments with the assistance of an interpreter in the Urdu and English languages. At the hearing, the Applicant conceded:
a)that he did not meet the requirements of the Medical visa;
b)that his last substantive visa, being the Transit (Temporary) (Class TX) (Subclass 771) visa, had ceased on 22 May 2012; and
c)that he was under the age of 50 years.
The Applicant did not suggest to the Tribunal that he met any of the other requirements of cl.602.212(6), one of which is that under cl.602.212(6)(f) he be “medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth”.
In these circumstances, the Tribunal was satisfied that at the time of his application for the Medical Visa, the Applicant did not hold a substantive temporary visa, did not meet cl.602.212(6)(b) as he had not turned 50 years of age and that he did not satisfy Criterion 3001 because his application for the Medical visa was made on 27 April 2017 and was not therefore made within 28 days of the “relevant day”, being 22 May 2012. Therefore, the Tribunal found that the Applicant did not satisfy cl.602.213 and it affirmed the decision of the Delegate not to grant to him a Medical visa.
Application to this Court
The Grounds for extension put forward by the Applicant in his Application filed in this Court, as amplified in an affidavit affirmed by him on 24 October 2017, basically asserted that he missed the date for filing his Application in this Court because of his medical condition and also his financial situation in not being able to engage a lawyer. None of the medical grounds asserted establish any mental or physical incapacity which would have precluded him from commencing a judicial review proceeding in this Court and, of course, most applicants for visas who seek judicial review in this Court do not have the benefit of having a lawyer to act for them. The Grounds of application for extension of time were as follows:
1. The delay in my case in seeking judicial review of the Tribunal's decision is not very lengthy. I should have applied by 4th of October 2017 and I am delayed by 2l days.
2. I missed the date because of my medical conditions. Copies of Medical Certificates are annexed with affidavit.
3. Due to my financial situations I could not engage a lawyer for the review.
4. It is in the interests of the administration of Justice to allow me the extension of time and to review my case.
5.The impact on me will be severe if the extension of time is not granted. I am under treatment and on medications affecting my memory and concentration.
6. I believe my case has merits of the proposed Judicial review application.
His substantive Grounds as set out in his Application filed in this Court relate in particular to procedural unfairness, a misconstruction of Subclass 602, a misapplication of Criterion 3001 and legal unreasonableness, and were as follows:
1. The Tribunal denied me procedural fairness in that it failed to give proper consideration to the medical records and evidence that I presented to the Tribunal supporting my case for a medical visa.
2. The Tribunal misapplied and/or misconstrued Clause 602.121(6) of the Regulations and in so doing committed legal error that I do not qualify for the medical visa that I had applied.
3. The Tribunal misapplied criterion 3001 in that although I did not hold a substantive visa, I was seeking one because my medical condition had deteriorated after the expiry of my last substantive visa.
4. The Tribunal's decision is legally unreasonable in the circumstances of my case in that my medical condition and all supporting medical evidence shows that I should be granted a medical visa to continue my medical treatment in Australia.
5. I kindly request the Honourable Court to kindly set aside the Tribunal's decision of 31 August 2017 and delivered on 01 October 2017.
Proceedings in this Court
The first return date of the Application was 9 February 2018 when the Applicant was present and orders were made to get the matter ready for hearing and I set the final hearing for 21 June 2018. Then there was an exchange of emails on 7 and 8 June 2018, the substance of which was that on or about 16 April 2018 (and therefore very much subsequent to when the Applicant knew that the hearing date in this matter had been set down for 21 June 2018), his claim in a separate matter in this Court in its Canberra Registry was set down for a mediation on 21 June 2018.
The emails, in short, constituted an assertion by the Applicant that he could not come to the final hearing in this Court on 21 June 2018 because he had to go to the mediation in Canberra on the same date. By email responses the Minister’s lawyers indicated that they wished to adhere to the hearing date of 21 June 2018 and that there was no sufficient reason given by the Applicant for any adjournment. My Associate also responded to the Applicant and pointed out that he had attended this Court on 9 February 2018 when the hearing date of 21 June 2018 was set and that he needed to change the date of the mediation before a Registrar of this Court in Canberra and give priority to this case, namely his claim against the Minister in this Court in Sydney.
However, the Applicant chose to attend the mediation in Canberra. He did not appear at the hearing on 21 June 2018 and the circumstances and my reasons for dismissing his Application for non-appearance and ordering costs against him are set out in the judgment bearing reference Gujjar v Minister for Immigration & Anor [2018] FCCA 2074. I will not further refer to that judgment, but it should be regarded as comprising a part of my reasons for judgment here today.
In these circumstances, the Applicant filed an Application in a Case on 6 August 2018 supported by an affidavit affirmed by him on 17 July 2018. That affidavit in effect merely asserted the truism that he could not be in two places at once.
The law and principles to be applied when a party seeks to reinstate a dismissal of his or her application because they have not appeared at the final hearing are conveniently set out in the judgment of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]:
[7]In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
The first thing that an applicant has to show is a reasonable excuse for that party’s absence from the final hearing at which the proceeding was struck out. In my view, the Applicant has entirely failed to provide any adequate explanation as to why he did not appear on 21 June 2018. He knew quite well that it was his obligation to appear on 21 June 2018 because he knew that his Application had been set down for hearing on that date months before, but he made a deliberate choice, with knowledge, to give preference to the mediation in Canberra rather than to appear in this Court in Sydney on 21 June 2018.
He himself would have been well able to tell the Registrar, or alternatively have his lawyers in the Canberra proceeding, namely Malik Lawyers, tell the Registrar, that he needed the mediation date before the Registrar in Canberra altered from 21 June 2018 to allow him to appear on that date at the hearing of his case in this Court here in Sydney, but he elected not to do that.
Accordingly, I find that he has given no reasonable excuse for his failure to appear at the final hearing on 21 June 2018 and on that basis alone I would dismiss his Application in a Case.
However, my decision in that regard is fortified by the fact that he has no reasonable prospects of establishing that the decision of the Tribunal is affected by jurisdictional error. This is an area of law where the Tribunal is not entitled to take into account what might be called exceptional circumstances, compelling circumstances, humanitarian circumstances or sympathetic circumstances. It was simply not open to the Delegate or the Tribunal to take such matters into account and the Tribunal had no power to exercise any discretion in the Applicant’s favour for any such reasons.
The fact of the matter in my view is that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse the Medical visa application and the Tribunal was bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18]–[19] per Perram J; Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [5]–[6] per White J and Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 at [14]–[15] per Dowsett J.
In my view, the decision of the Tribunal and its construction of the relevant provisions of the Act and Regulations was correct and none of the Applicant’s Grounds could establish that the Tribunal made jurisdictional error in its application of the relevant provisions respecting the grant of a Medical visa.
As to Ground 1, the Tribunal did not deny him procedural fairness by a failure to consider any medical records and evidence that he presented.
As to Ground 2, I see no reason to think that the Tribunal misapplied or misconstrued cl.602.212(6) of the Regulations or committed any legal error in that regard.
As to Ground 3, the Tribunal did not misapply Criterion 3001.
As to Ground 4, the Tribunal’s decision was not legally unreasonable.
In these circumstances, the Applicant has no reasonable prospects of success for his substantive Grounds in seeking to have the decision of the Tribunal set aside. There would therefore be no utility in granting an extension of time as sought by the Applicant of some 18 days. And so therefore, finally, there would be no utility in reinstating his Application which was dismissed on 21 June 2018.
A Final Matter
I note for completeness that cl.602.213 was amended by the Migration Legislation Amendment (2017 Measure No. 3) Regulations 2017 (Cth) by repealing cl.602.213(5). These amendments apply to Medical visa applications made on or after 1 July 2017, but not to a Medical visa application which had already been made, as was the case here, prior to that date.
Accordingly, those amendments did not apply to the present Medical visa application and the Applicant in this proceeding needed to satisfy cl.602.213 as in force prior to those amendments: see in particular the decision of Middleton J in Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 at [14] – [16].
Conclusion
Accordingly, I will order that the Application in a Case filed on 6 August 2018 be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 3 September 2018
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