Hossain v Minister for Home Affairs

[2018] FCCA 3173

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3173

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal failed to assess the relevant criteria – whether the Tribunal identified the relevant law – no arguable case of jurisdictional error made out – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

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

Migration Act 1958 (Cth), ss.359A, 476
Migration Regulations 1994 (Cth), cl. 602.212, 602.213 of Schedule 2, Schedule 3

Applicant: EMDAD HOSSAIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 859 of 2018

Judgment of: Judge Street

Hearing date: 2 November 2018

Date of Last Submission: 2 November 2018

Delivered at: Sydney

Delivered on: 2 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr D McLaren
MinterEllison

ORDERS

1. This proceeding will be heard concurrently with proceedings SYG860/2018 and SYG862/2018.

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

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

DATE OF ORDER: 2 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 859 of 2018

EMDAD HOSSAIN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 7 March 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 Bangladesh and his last substantive visa ceased on 10 September 2013. The applicant applied for a Medical Treatment visa on 30 June 2017, and on 11 July 2017, the delegate found the applicant failed to meet the criteria for the grant of a Medical Treatment visa.

3. The applicant lodged an application for review on 31 July 2017. By letter dated 30 January 2018, the Tribunal invited the applicant to attend a hearing on 7 March 2018. The applicant appeared before the Tribunal to give evidence and present arguments.

4. The Tribunal found the applicant failed to meet the criteria under cl 602.212 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found that the application was not made within 28 days of the relevant day, and that the applicant failed to meet the criteria under 3001 of Schedule 3 of the Regulations. Accordingly, the Tribunal found that the applicant did not meet the criteria under cl 602.213 of the Regulations and affirmed the decision under review.

5. These proceedings were commenced on 28 March 2018. On 19 April 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.

6. At the commencement of the hearing the Court explained to the applicant the nature of the hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and the applicant confirmed he understood the nature of the hearing as explained by the Court.

7. From the Bar table, the applicant maintained that he wished to have the Court exercise a discretion to permit the applicant, his wife and son to remain in Australia and not to be returned to Bangladesh. The applicant referred to their limited circumstances and the impact upon them of not being able to work.

8. The Court understands that their circumstances has imposed significant stress on the parties, but the Court has no discretion or power to grant relief unless it is satisfied there is relevant error by the Tribunal. Nothing said by the applicant from the bar table identified any arguable case of relevant error by the Tribunal.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to put 'information' under Section 359 A of the Migration Act.

   Particulars

   The Tribunal noted in its decision that as per the Departmental records that the applicant came to Australia on a visitor visa dated 10 December 2013. This is an 'information' covered under Section 359A of the Migration Act. By failing to put that 1information' to the applicant required under the Act, the Tribunal committed a legal error.

   2. The Tribunal failed to ask relevant questions and failed to assess relevant criteria required to grant the visa.

   Particulars

   Clause 602.212 (1) provides that clause 602.212 would be satisfied if any of the requirement noted in clause 602.212 (2) -(8) satisfied. Clause 602.212 (8) further states that the decision maker should consider compelling reasons when assessing to grant the visa. In the applicant's case the Tribunal failed to ask relevant questions on whether there are any compelling reasons for the grant of visa or failed to consider the compelling reasons in the case.

Ground 1

1. In relation to ground 1, insofar as it is referring to information being the cessation of the substantive visa that was identified in the delegate’s decision and accordingly does not constitute information enlivening obligation under s 359A of the Act. No arguable case of jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, it is not the case that the Tribunal had any power to grant the visa on compelling or compassionate grounds. Where the Tribunal found the applicant failed to meet the mandatory criteria, it was not necessary for the Tribunal to ask the applicants other questions relating to compassionate and compelling grounds. No arguable case of jurisdictional error is disclosed ground 2 of the application.

Conclusion

1. The application failed 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 Federal Circuit Court Rules.

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

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

Date: 6 December 2018