Hao v Minister for Immigration and Border Protection
[2018] FCA 1341
•21 August 2018
FEDERAL COURT OF AUSTRALIA
Hao v Minister for Immigration and Border Protection [2018] FCA 1341
Appeal from: Application for leave to appeal: Hao v Minister for Immigration & Anor [2018] FCCA 443 File number: NSD 320 of 2018 Judge: WIGNEY J Date of judgment: 21 August 2018 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from judgment and orders of Federal Circuit Court of Australia – whether decision of primary judge attended by sufficient doubt to warrant reconsideration by appellate court – application dismissed
MIGRATION – application for Medical Treatment (Visitor) (Class UB) visa – where applicant failed to satisfy cl 602.213(5) of Schedule 2 to the Migration Regulations 1994 (Cth) – where applicant failed to satisfy criterion 3001 of Schedule 2 to the Migration Regulations 1994 (Cth)
ADMINISTRATIVE LAW – judicial review – procedural fairness – where primary judge found no jurisdictional error
Legislation: Federal Court of Australia Act 1976 (Cth), s 24
Migration Act 1958 (Cth), ss 360, 476
Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Regulations 1994 (Cth), cll 602.211, 602.212, 602.213, 602.214 of Sch 2, criteria 3001, 3003, 3004, 3005 of Sch 3
Cases cited: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing: 21 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 54 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent made a submitting appearance, save as to costs ORDERS
NSD 320 of 2018 BETWEEN: JIE HAO
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
21 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal, filed on 7 March 2018, be dismissed.
2.The applicant pay the first respondent’s costs of the application, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)WIGNEY J:
In December 2016, Mr Jie Hao applied for a Medical Treatment (Visitor) (Class UB) visa. That application was refused by a delegate for the Minister for Immigration and Border Protection. Mr Hao applied to the Administrative Appeals Tribunal for a review of that decision. That review application was unsuccessful. The Tribunal affirmed the decision to refuse to grant the visa to Mr Hao. Mr Hao challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. The primary judge in the Circuit Court dismissed that application on the basis that Mr Hao had failed to advance an arguable case of jurisdictional error on the part of the Tribunal.
In this application, Mr Hao sought leave to appeal from the primary judge’s dismissal of his review application.
BACKGROUND
Mr Hao applied for the Medical Treatment visa on 21 December 2016.
To qualify for that visa, Mr Hao had to satisfy the primary criteria in, relevantly, cll 602.211, 602.212, 602.213 and 602.214 of Schedule 2 to the Migration Regulations 1994 (Cth).
The requirement in cl 602.211 was that the applicant sought to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
At the time that Mr Hao applied for the visa, cl 602.212 contained eight subclauses. Subclause 602.212(1), provided that an applicant must meet the requirements in one of subcll 602.212(2) to 602.212(8). It would appear that Mr Hao claimed that he satisfied subcl 602.212(2), which provided as follows:
(2) All of the following requirements are met:
(a)the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
In Mr Hao’s visa application form, he indicated that he required treatment for “high blood pressure and high blood glucose” and that he would make arrangements for his treatment. It does not appear that Mr Hao provided any additional material or information to the Department of Immigration and Border Protection in support of his visa application. It is, accordingly, not readily apparent whether or not Mr Hao was able to satisfy all of the requirements in subcl 602.212(2). Nor is there anything to suggest that Mr Hao was able to meet the requirements in any of the other subclauses of cl 602.212, or that he even claimed to meet any of those requirements. As will be seen, neither the delegate, nor the Tribunal, nor indeed the Circuit Court, gave any detailed consideration to cl 602.212.
The clause that turned out to be critical in Mr Hao’s case was cl 602.213. It provided as follows:
(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.
It was, at all times, common ground that Mr Hao did not hold a substantive temporary visa at the time he made his application for a Medical Treatment visa in December 2016. Subclause 602.213(2), therefore, did not apply.
It appears to have been accepted by the Tribunal that subcll 602.213(4) and 602.213(5) applied because Mr Hao was in Australia at the time he applied for the visa, did not hold a substantive temporary visa at that time, and the requirements in subcl 602.212(6) were not met by Mr Hao. Subclause 602.212(6) required, amongst other things, a written statement from a medical officer of the Commonwealth that the visa applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition. There was no suggestion that Mr Hao had such a condition, or that he had a written statement from a medical officer certifying that he had any such condition.
It appears to have been common ground that Mr Hao met the requirements of subcl 602.213(4). That is because his last substantive temporary visa was not one of the types of visas referred to in that subclause.
In the circumstances, therefore, the critical question was whether Mr Hao met subcl 602.213(5). That subclause required Mr Hao to satisfy the requirements in criteria 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations.
As will be seen, the primary stumbling block for Mr Hao was criterion 3001.
Criterion 3001 was in the following terms:
(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:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i)the day when that last substantive visa ceased to be in effect; and
(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.
As can be seen, to satisfy criterion 3001, Mr Hao was required to have made his visa application within 28 days after the “relevant day”. Criterion 3001(2) defined the “relevant day”. It appears, at all times, to have been common ground that criteria 3001(2)(a), 3001(2)(b), 3001(2)(c)(ii), 3001(2)(c)(iv) and 3001(2)(d) did not apply in Mr Hao’s case. The “relevant day” was, therefore, the day specified in criteria 3001(c)(i) and 3001(c)(iii), namely, the last day that Mr Hao held a substantive visa on or after 1 September 1994.
It was not disputed that the last day that Mr Hao held a substantive visa was 17 July 2012. On that day, Mr Hao’s Tourist (Class TR) (subclass 676) visa ceased. For Mr Hao to satisfy criterion 3001(1), therefore, he was required to have lodged his application for the Medical Treatment visa within 28 days of 17 July 2012. As previously mentioned, Mr Hao made his visa application on 21 December 2016.
It is, in those circumstances, perhaps not surprising that on 19 January 2017, the delegate refused to grant the Medical Treatment visa to Mr Hao. The delegate was not satisfied that Mr Hao met the criteria in cl 602.213. The delegate’s decision is not before this Court. It may perhaps be assumed, however, that the delegate was not satisfied that Mr Hao met the requirements of subcl 602.213(5) of Schedule 2 because he did not satisfy criterion 3001.
Mr Hao applied to the Tribunal for a review of the delegate’s decision.
TRIBUNAL’S REVIEW AND DECISION
On 20 April 2017, Mr Hao appeared before the Tribunal to give evidence and present arguments in relation to his application. On 24 April 2017, the Tribunal affirmed the decision under review.
As adverted to earlier, it would appear that the Tribunal did not directly consider whether Mr Hao met the criteria in cl 602.212. In any event, in its Reasons, the Tribunal described Mr Hao’s claims and evidence in that regard in the following terms (Reasons at [6]):
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. There were no documents in 'relation to the applicant's medical issue, health or treatment provided with the medical treatment application form. The applicant had recorded at question 18 that he had high blood pressure and high blood glucose, and would make arrangements for his treatment. In the hearing the applicant stated that his experience with the immigration and visa process had given him depression. The applicant stated he had depression, and had searched the internet and applied for the medical treatment visa.
If that was an accurate description of Mr Hao’s claims, it is difficult to see how Mr Hao could possibly have complied with any of the subclauses in cl 602.212. It would appear, however, that the Tribunal did not consider that question further because it saw that the main issue in Mr Hao’s case was whether he met what the Tribunal referred to as the “Schedule 3 criteria”, in particular, criterion 3001.
The Tribunal found that Mr Hao did not meet criterion 3001. Its reasons for that finding were as follows (Reasons at [11]-[12]):
The applicant told the tribunal that he was not the holder of a substantive visa. He stated he last held a substantive visa four years ago. He stated he had held bridging visas since then as he had.applied unsuccessfully for a protection visa, and had applied for review to the RRT and had appealed to the Federal Court. The matter had been determined three to four months ago..
The applicant had provided the tribunal with a copy of the Department's decision record dated 19 January 2017 which recorded he had last held a TR-676 visa that had ceased on 17 July 2012. The applicant stated the last substantive visa he held was the TR-676, and he had not held another substantive visa since that visa expired. The tribunal is satisfied that the applicant's evidence that he last held the TR-676 visa "four years ago", is consistent with the Department's record that the visa of the same type ceased on 17 July 2012, which is four years and ten months ago. Based on the evidence of the applicant and the information recorded in the Department decision record, the tribunal finds the applicant last held a substantive visa on 17 July 2012. For the purposes of consideration of Schedule 3 criteria, the tribunal is satisfied that 17 July 2012 is the relevant day.
The tribunal has considered the application form for the medical treatment visa, and is satisfied the applicant made the application for the medical treatment visa on 22 December 2016. The application form is stamped as received by the Department on that day. The tribunal is satisfied the application for the medical treatment visa was made on 22 December 2016, and was therefore made four years and five months after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Having found that Mr Hao did not meet criterion 3001 and, therefore, did not meet the criteria in cl 602.213, the Tribunal affirmed the delegate’s decision.
THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT
Mr Hao applied to the Circuit Court for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth). He was not legally represented. His grounds of review were, to put it politely, not altogether helpful or illuminating. They were (as drafted):
1,I disagree with Immigration and AAT’s decision. They did not consider that I have genuine intention to apply for medical visa in Australia.
2,I could not apply for medical visa offshore as I have strong fears to return to my home country even though my protection visa has been refused by DIBP. My compelling reasons for applying onshore has not been well considered by DIBP and AAT. DIBP and AAT did not given a good consideration of my situation was out of my control.
3,DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.
[4],Based on the context of my review statement, I have indicated specifically that I have strong compelling reasons for not holding a substantive visa for subclass 602 at the time of application. The [T]ribunal has failed to well consider this compelling reason as I indicated explicitly which apparently trigger the legal error against the comprehensiveness and fairness in line with the [T]ribunal’s review principle.
[5],I don’t think the [T]ribunal has taken good account in this critical issue and that is the reason I would urge if any of the federal’s close attention and reconsideration can be granted in my federal court appeal.
[6],I don’t think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I do need medical treatment in Australia.
The primary judge set the matter down for hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At such a hearing, known as a “show cause” hearing, the Circuit Court can dismiss an application if it is not satisfied that it raises an arguable case for the relief claimed. Rule 44.12(2) of the Circuit Court Rules makes it clear that such a dismissal is interlocutory in nature.
Mr Hao attended a hearing in the Circuit Court on 26 February 2018. The primary judge delivered ex tempore reasons dismissing Mr Hao’s application on the same day.
It would appear that Mr Hao did not file or rely on any written submissions in the Circuit Court. He made oral submissions, though it would appear that he did not make any submissions that were directed at, or were capable of providing any illumination regarding, his grounds of review. Rather, his oral submissions appeared to assert little more than that the Tribunal had denied him procedural fairness.
In his written reasons for Judgment, the primary judge summarised Mr Hao’s submissions in the following terms (Judgment at [13]):
Only the Minister prepared written submissions in accordance with the registrar’s orders prior to today’s hearing. I invited oral submissions from Mr Hao today. He told me that, in his view, the Tribunal acted improperly. He told me that the presiding member repeatedly stopped him from speaking by using words and hand gestures. In his opinion, he was not afforded a fair hearing opportunity. He sought to explain to the Tribunal his health problem, and he does not consider that he received a fair hearing. He says that the presiding member expressed sympathy but still cut him off. Mr Hao says that these complaints could be verified by listening to the sound recording of the Tribunal hearing. At this stage, neither the sound recording nor a transcript of the Tribunal hearing is in evidence. I am willing to accept, however, for the sake of argument that Mr Hao was stopped by the Tribunal member in attempting to inform the Tribunal of his asserted health problems.
The primary judge dealt with Mr Hao’s contentions in a rather curious, if not unsatisfactory way. Despite there being no evidence whatsoever that was capable of supporting Mr Hao’s contentions, there being no transcript or recording of the Tribunal hearing in evidence and no affidavit or oral evidence from Mr Hao, the primary judge indicated that he was willing to accept “for the sake of argument that Mr Hao was stopped by the Tribunal member in attempting to inform the Tribunal of his asserted health problems”. Having apparently accepted Mr Hao’s contentions in that regard “for the sake of argument”, the primary judge then went on to say (Judgment at [14]-[15]):
It is clear from the Tribunal decision that Mr Hao could not qualify for the visa he sought unless he satisfied the subclass 602 visa criteria, including the Schedule 3 criteria. Relevantly, Mr Hao needed to satisfy the Tribunal that he last held a substantive visa within 28 days of applying for the visa currently in issue. It is plain that Mr Hao was unable to persuade the Tribunal that he satisfied that criterion. Indeed, he last held a substantive visa around four years before applying for the medical treatment visa.
This presented an insuperable problem for Mr Hao. It is entirely possible that the Tribunal member became frustrated in attempting to explain that to Mr Hao when he wanted to talk about other issues. Given Mr Hao’s inability to satisfy the Schedule 3 criterion, it is unlikely that any procedural unfairness arising out of the Tribunal hearing would go to jurisdiction. Even if it did, it is hard to imagine why the Court would not, in the exercise of discretion, withhold relief, in circumstances where remittal to the Tribunal for rehearing would be entirely futile.
The main point his Honour appeared to be making was that, even if Mr Hao succeeded in demonstrating a denial of procedural fairness, that would not necessarily entitle him to the relief he sought. That is because, in circumstances where Mr Hao was unable to demonstrate that he could possibly have satisfied criterion 3001, the court would nevertheless withhold relief because it would be futile to quash the Tribunal’s decision and remit it for reconsideration according to law. That is because, upon remittal, the Tribunal would inevitably have affirmed the delegate’s decision in any event.
The futility of Mr Hao’s application in the circumstances may perhaps be accepted. That may have provided a good reason for the primary judge, in the exercise of his discretion, to refuse to grant Mr Hao the relief he sought. It is, however, rather difficult to understand the primary judge’s statement in paragraph 15 of the Judgment that “it is unlikely that any procedural unfairness arising out of the Tribunal hearing would go to jurisdiction”. If it was the case that the Tribunal denied Mr Hao procedural fairness, it would most likely follow that the Tribunal breached s 360 of the Act, which provides that 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”. A breach of s 360 would, in most circumstances at least, amount to a jurisdictional error (see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [60]-[61]).
The primary judge’s observation that the denial of procedural fairness asserted by Mr Hao would not, in any event, “go to jurisdiction” would be a concern if his Honour had in fact found that there was a denial of procedural fairness. It is clear, however, that the primary judge ultimately rejected the contention that the Tribunal had denied Mr Hao procedural fairness. The primary judge said, in that regard (Judgment at [20]):
Further, to the extent that Mr Hao contends by Grounds 4 and 6 that he was denied procedural fairness by the Tribunal, there is nothing before the Court or on the face of the Tribunal’s decision which supports Mr Hao’s assertion that the Tribunal failed to comply with its procedural fairness obligations as provided in Part 5, Division 5 of the Migration Act 1958 (Cth).
The primary judge was correct to reject Mr Hao’s contention that he was denied procedural fairness. Mr Hao did not adduce any evidence that was capable of supporting that contention. He did not tender the hearing transcript or hearing tape, or give evidence himself.
It should also be noted at this point that, at the hearing of Mr Hao’s application for leave to appeal, the Minister submitted that the primary judge’s observations concerning procedural fairness should be read in context. In the Minister’s submission, all the primary judge was saying in paragraphs 13 to 15 of the judgment was that, whilst Mr Hao may have been stopped by the Tribunal from saying anything further concerning his asserted health problems, Mr Hao’s health problems were not material to what was the critical issue before the Tribunal. That critical issue was whether Mr Hao met criterion 3001. In the Minister’s submission, on that reading of paragraphs 13 to 15, it is clear that his Honour did not accept that there was a denial of procedural fairness.
There is merit in the Minister’s submission in that regard. That also explains his Honour’s ultimate finding at paragraph 20 that there was nothing before the court which supported Mr Hao’s assertion that the Tribunal failed to comply with its procedural fairness obligations.
The primary judge otherwise considered and rejected all of Mr Hao’s other grounds of review.
It is unnecessary to consider his Honour’s reasons in relation to the other grounds of review in any great detail. His Honour considered that grounds one and three amounted to nothing more than a request for “impermissible merits review” of the Tribunal’s decision. As for grounds two, four and six, the primary judge held that Mr Hao’s claim that the Tribunal had failed to consider his “compelling reasons” was misconceived. That was because, once it was accepted that Mr Hao failed to meet criterion 3001, the question whether he had compelling circumstances or not was irrelevant. As for ground five, the primary judge pointed out that Mr Hao had never identified the “critical issue” that the Tribunal was alleged to have failed to consider. His Honour found that there was no such issue and that there was “nothing before the Court to suggest that the Tribunal overlooked a central piece of evidence, or indeed any item of evidence, that was before it” (Judgment at [23]).
The primary judge concluded that Mr Hao was unable to advance an arguable case of jurisdictional error by the Tribunal and, accordingly, dismissed the application pursuant to r 44.12(1)(a) of the Circuit Court Rules.
APPLICATION FOR LEAVE TO APPEAL
Mr Hao sought leave to appeal from the judgment of the Circuit Court. Leave to appeal was required because the dismissal of Mr Hao’s application pursuant to r 44.12 of the Circuit Court Rules was an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave.
In considering whether leave to appeal should be granted, the first limb of the relevant test generally involves a consideration of whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 at 390-400.
It is appropriate, then, to consider whether Mr Hao has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The starting point is Mr Hao’s proposed grounds of appeal. Mr Hao’s application for leave to appeal contained the following three grounds (as drafted):
1.I AM A CHINSE CITIZEN AND APPLIED FOR SUBCLASS 602 ON SHORE WITHOUT SUBSTANTITIVE VISA. I DID PROVIDE TO DIBP, AAT AND FEDRAL COURT WITH COMPELLING REASONS.
2.AAT AND FEDERAL COURT DID NOT WELL CONSIDER MY SPECIAL FOR NOT HOLDING A SUBSTANTIVE VISA AT THE TIME OF LODGING SUBCLASS 602 DUE TO MY PROTECTION VISA APPLICATION WAS FAILED , HOWEVER I STILL HAVE STRONG FEARS TO LEAVE AUSTRALIA TO LODGE 602 VISA OFFSHORE.
3.AAT AND FEDERAL COURT FAILED TO CONSIDER MY EXPLAINATION AND SUPPORTING DOCUMENTS TO SUPPORT MY APPEAL WHICH I BELIEVE IT IS A LEGAL ERROR.
Mr Hao also relied on an affidavit made by him, filed along with his application, which annexed his draft notice of appeal. In the body of the affidavit, Mr Hao stated as follows:
2.MY APPEAL APPLICATION FOR FEDERAL CIRCUIT COURT HAS BEEN DISMISSED AND I DISAGREE WITH ITS DECISION
3.I WISH TO DO FURTHER REVIEW WITH YOU COURT AND GET A MORE FAIR DECISION
Mr Hao’s draft notice of appeal contained two grounds which repeated or replicated grounds one and three in his application for leave to appeal. The following two grounds also appear under the heading “Orders Sought” in the draft notice of appeal:
1.I WISH THE COURT CAN RE-CONSIDER MY SUBCLASS 602 APPLICATION AND ACCEPT MY COMPELLING REASON FOR NOT HOLDING A SUBSTANTIVE VISA AT THE TIME OF THE LODGEMENT
2.THERE IS A LEGAL ERROR FROM DIBP AND AAT FOR NOT CONSIDERING THE COMPELLING REASON TO LODGE SUBCLASS 602 ONSHORE
Mr Hao did not file any written submissions in relation to his application for leave.
Mr Hao made some oral submissions at the hearing of his leave application. Those submissions were neither easy to comprehend or particularly persuasive.
The essence of Mr Hao’s submissions was that he was denied procedural fairness by the Tribunal. He asserted that the Tribunal did not allow him to present his case because he was continually interrupted. He submitted that he told that to the primary judge in the Circuit Court, but the primary judge simply said that, while that may have happened, it did not affect the outcome. In Mr Hao’s submission, that was a serious mistake on the part of the primary judge.
Mr Hao was invited to address the Tribunal’s central finding concerning his failure to meet criterion 3001 in Schedule 3 to the Regulations. That criterion was explained to Mr Hao and he was invited to make any submissions he wanted to make concerning whether he met, or was able to meet, that criterion. He was invited, in particular, to indicate if he had any submissions to make about whether the Tribunal was wrong to conclude that he did not meet criterion 3001. Mr Hao did not advance any, or at least any meaningful, submissions concerning that issue.
Mr Hao was also invited to tell the Court what he would have told the Tribunal had he not been stopped from speaking as he claimed he had. He was also invited to make any submissions he wanted to make in relation to the compelling or special circumstances which he claimed the Tribunal had ignored. Mr Hao did not make any meaningful or relevant submissions in response to those invitations. He simply repeated that he had been interrupted in the Tribunal and dealt with unfairly.
MERITS OF THE LEAVE APPLICATION
Nothing in Mr Hao’s written application or oral submissions identified anything that would cast any doubt on the correctness of the decision of the primary judge. In the face of what appears to be an insurmountable finding that Mr Hao did not meet criterion 3001, Mr Hao’s repeated refrain that his compelling or special features were not considered by the Tribunal has no merit whatsoever. It is unclear what those compelling features were, and even more unclear how they could possibly have overcome the fact that Mr Hao plainly did not meet criterion 3001.
Mr Hao’s appeal grounds largely mirror his grounds of review before the primary judge. His Honour was correct to reject those grounds for the reasons his Honour gave.
To the extent that Mr Hao’s various assertions might be thought to constitute a claim that he was denied procedural fairness, the primary judge was correct to reject the contention that the Tribunal had not complied with s 360 of the Act, or that Mr Hao had otherwise been denied procedural fairness. It should be reiterated at this point that there was no evidence in the form of a transcript or hearing tapes before the primary judge to make good Mr Hao’s contention. Nor did Mr Hao swear an affidavit or give oral evidence to support his assertion that he was denied procedural fairness.
It is unnecessary to say anything further concerning his Honour’s hypothetical excursion into the territory of what might have happened if there had, in fact, been a denial of procedural fairness. For the reasons already given, his Honour was correct to find that there was no such denial of procedural fairness. His Honour was also correct to point out that, even if Mr Hao had been able to demonstrate a denial of procedural fairness, there would have been no utility in granting Mr Hao the relief he sought given the impediment posed by criterion 3001 in his case. That may have been a good reason for the court, in the exercise of its discretion, to deny Mr Hao the relief he sought: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56]-[58] (Gaudron and Gummow JJ) and [104] (McHugh J); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [52]-[59].
It should also perhaps be reiterated in this context that, despite repeated invitations to do so, Mr Hao declined to tell the Court what he would have said had he not been stopped from speaking by the Tribunal as he claimed he had. He also declined to make any submissions concerning his so called compelling circumstances and was either unable or unwilling to address his apparent inability to meet criterion 3001, which was clearly the central issue in his case.
Mr Hao has failed to demonstrate that the judgment of the primary judge is attended by sufficient doubt to warrant the ground of leave to appeal. His application must accordingly be dismissed. In all the circumstances, it is appropriate for Mr Hao, as the unsuccessful party, to pay the Minister’s costs in relation to the application.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 31 August 2018
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