Hallak v Minister for Home Affairs

[2018] FCCA 3188

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALLAK v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3188

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal made its decision according to law – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal bought an impartial mind to the determination of the matter on its merits – no arguable case of jurisdictional error made out – application dismissed under r 44.12 of the Federal Circuit Court Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.602.212 of Schedule 2, Schedule 3

Applicant: BILAL EL HALLAK

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1201 of 2018

Judgment of: Judge Street

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Sydney

Delivered on: 5 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 5 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1201 of 2018

BILAL EL HALLAK

Applicant

And

MINISTER FOR HOME AFFAIRS

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 April 2018 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a citizen of Lebanon and applied for the visa on 23 June 2017. On 29 June 2017, the delegate found the applicant failed to meet the criteria for the grant of the Medical Treatment visa. The applicant’s last substantive visa expired on 1 July 2013.

3. On 12 July 2017, the applicant lodged an application for review with the Tribunal. The Tribunal in its reasons identified the applicant appeared before the Tribunal to give evidence and present arguments on 17 April 2018.

4. The Tribunal identified the requirements under cl 602.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) and identified the applicants date of birth and found that the applicant did not meet the requirements of cl 602.212(6) of the Regulations and noted that there was no certificate by a Medical Officer of the Commonwealth in that finding.

5. The Tribunal turned to whether the applicant met the requirements of cl 602.212(6) of the Regulations by meeting the criteria in Schedule 3 in circumstances where the applicant did not hold a substantive temporary visa at the time of application and the last visa held was not a subclass 403 or subclass 426 visa.

6. The Tribunal identified that the last substantive visa held by the applicant expired on 1 July 2013 and accordingly found that the application was made more than 28 days after the relevant day and that the applicant failed to meet the Schedule 3 criteria in 3001 of the Regulations. Accordingly, the Tribunal affirmed the decision under review.

7. These proceedings were commenced on 27 April 2018. On 24 May 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

8. At the commencement of the hearing the Court explained to the applicant the nature of the show cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”) and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

9. From the bar table the applicant identified that he had problems with his memory and identified the circumstances of the breakup with his partner. The applicant also identified he has limited means and invited the Court to consider the applicant’s personal circumstances. This Court has no power to decide the application on discretionary or compassionate grounds. This Court has no power to review the merits. This Court can only consider whether the applicant has a reasonable argument in this hearing as to the Tribunal’s decision being the subject of relevant legal error.

10. The first respondent submitted that the applicant’s submissions from the bar table invited the Court to engage in impermissible merits review. That submission was correct. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

The grounds

1. The ground in the application is as follows:

   1. The Tribunal refused my application for reasons listed in clause 7 of the decision of 18 April 2018. Mainly that I had not yet turned 50 years and another reason is that I was on bridging visa when I made my application for medical treatment and I was not the holder of substantive visa. The decision of the Tribunal is made according to the law but there is discrimination which I do not agree with because of the age factor my application was refused and as a matter of fact I am medically unfit to depart Australia and the Tribunal failed to consider my non fitness to travel.

2. In so far as the ground in the application should be understood as asserting that the decision was not made according to law and that the applicant contends that he was medically unfit, the applicant’s assertion that the decision was not made according to law is inconsistent with the face of the Tribunal’s decision that correctly identified the relevant law, and made findings that were open to the Tribunal.

3. The ground refers to the proposition that there was discrimination. No basis for such an assertion is identified on the face of the material before the Court. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the matter on its merits.

4. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. The applicant’s assertion that he is unfit does not identify any jurisdictional error. The Tribunal did not have the power to disregard the failure by the applicant to meet the criteria in circumstances where his last substantive visa expired in 2013, given his age and the absence of holding any other relevant visa and not having a relevant certificate from a Medical Officer of the Commonwealth.

5. The Tribunal was not required to assess the applicant’s fitness to travel in circumstances where the applicant did not meet the mandatory criteria. No arguable case of jurisdictional error is disclosed by ground 1 of the application.

Conclusion

1. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

2. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018