Hossain v Minister for Home Affairs
[2019] FCA 634
•8 May 2019
FEDERAL COURT OF AUSTRALIA
Hossain v Minister for Home Affairs [2019] FCA 634
Appeal from: Applications for leave to appeal: Hossain v Minister for Home Affairs [2018] FCCA 3173; Rahman by his litigation guardian v Minister for Home Affairs [2018] FCCA 3174 and Rahman v Minister for Home Affairs [2018] FCCA 3177 File numbers: NSD 2086 of 2018
NSD 2087 of 2018
NSD 2088 of 2018Judge: BESANKO J Date of judgment: 8 May 2019 Legislation: Migration Act 1958 (Cth) s 65
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) r 9.63
Migration Regulations 1994 (Cth) cll 602.212, 602.213 Sch 2
Cases cited: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Date of hearing: 6 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 23 Counsel for the Applicants in NSD 2086 of 2018 and NSD 2088 of 2018: The applicants appeared in person Counsel for the Applicant in NSD 2087 of 2018 Mr E Hossain appeared as litigation guardian for the applicant Solicitor for the First Respondent: Mr J Pinder of MinterEllison Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS
NSD 2086 of 2018 BETWEEN: EMDAD HOSSAIN
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
NSD 2088 of 2018 BETWEEN: SALMA RAHMAN
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
8 MAY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 2087 of 2018 BETWEEN: ALIF RAHMAN BY HIS LITIGATION GUARDIAN EMDAD HOSSAIN
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
8 MAY 2019
THE COURT ORDERS THAT:
1.Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the applicant’s father (Emdad Hossain) be appointed as his litigation representative.
2.The application for leave to appeal be refused.
3.The applicant’s litigation representative pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
These are three applications for leave to appeal from an order made in each case by the Federal Circuit Court of Australia under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) dismissing the applicant’s application for judicial review. The orders made by the Federal Circuit Court were interlocutory and leave to appeal to this Court is required. In the case of each of these applications, the applicant has not shown that there is sufficient doubt about the correctness of the judgments below to warrant review (Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397).
The applicants are members of the same family and the appeals raise common issues. The applicant in application NSD 2086 of 2018 is Emdad Hossain and he is the litigation guardian and father of the applicant, Alif Rahman, in application NSD 2087 of 2018. The applicant in application NSD 2088 of 2018 is Salma Rahman and she is married to Mr Emdad Hossain and the mother of Master Alif Rahman.
Each applicant made an application for a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) on 30 June 2017. At that time, Class UB contained one subclass which was Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The Subclass 602 (Medical Treatment) visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
In the case of each applicant, on 11 July 2017 a delegate of the Minister decided that the applicant did not meet the criteria in cl 602.212(6) and cl 602.213 of the Regulations and the delegate decided to refuse the application for the visa.
Clause 602.212(1) provides that the requirements in one of subclauses (2) to (8) must be met. These requirements relate to the basis for which the stay in Australia is required. The only criteria said to be relevant to these cases are those in subclause (6) which addresses medical unfitness to depart from Australia. The requirements in the subclause (all of which must be met) are as follows:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d)the applicant appears to have met all the criteria for the grant of the visa, other than public interest relating to health;
(e)the applicant has been refused the visa;
(f)the applicant is 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.
There is a reference in subclause (8) to compelling personal circumstances, but one of the requirements (relevantly) of the subclause is that the requirements described in paragraphs (6)(a)–(e) are met.
Clause 602.213 applies to applicants who are not medically unfit to depart from Australia within cl 602.212(6) and who were in Australia at the time the visa application was made. It requires that the applicant, at the time the application was made, either held a substantive temporary visa (except certain kinds), or if not, that the last substantive temporary visa they held was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream (or a Subclass 426 visa for applications made before 19 November 2016), and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the “relevant day”. The relevant day in the case of these applications is the last day when the applicant held a substantive visa.
With this background of the relevant legislative provisions, I now turn to consider the application of each applicant.
Emdad Hossain (NSD 2086 of 2018)
The Tribunal found that the applicant had not turned 50 and, therefore, the requirements of cl 602.212(6) were not met. His date of birth is 20 December 1975. The Tribunal found that the applicant was in Australia at the time that the application was made, that he did not hold a substantive visa at that time and that the last substantive visa he held was not a Subclass 403 or 426 visa. However, the applicant did not meet the 3001 criterion because the last substantive visa he held ceased on 10 September 2013 and the present application was made on 30 June 2017. It followed that he did not satisfy the requirements of cl 602.213.
There were two grounds of judicial review in the applicant’s application before the Federal Circuit Court. Before examining those grounds, I will address the grounds in the application for leave to appeal.
The proposed grounds of appeal to this Court are as follows:
1.The applicant notes that despite the order was issued on 2 November 2018, so far, the Federal Circuit Court has not provided its reasons for Judgement for more than 15 days which the applicant respectfully submits that has restricted his ability to present his case in the present courts.
2.The applicant further submits that the Federal Circuit Court had come to the hearing with pre-determined view to dismiss the case. It is unreasonable for a represented applicant like the applicant in the present case to seek judicial review in the present Court. The applicant respectfully submits to this court to consider whether there is any preconceived or bias in the decision.
With respect to Ground 1, the primary judge delivered his reasons for judgment orally at the conclusion of the hearing on 2 November 2018 and then published those reasons in written form on or about 6 December 2018. On 7 December 2018, the Registrar made directions for the progression of the application for leave to appeal to hearing, including directions enabling the parties to file a written outline of submissions within a certain period. The applicant has not filed a written outline of submissions. The applicant appeared before me in person. He appeared with an interpreter. He spoke on behalf of his wife and son who were present in Court. He made very brief submissions in support of the applications. His main point was that the applications should be granted because his son’s future would be better if he grew up in Australia.
In my opinion, the applicants have not been prejudiced by the fact that the primary judge’s written reasons were not provided to him until some time after the orders were made. They have had an opportunity to formulate their arguments.
With respect to Ground 2, there is no evidence that the primary judge had a pre-conceived view and bias has not been established: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (at [69]) per Gleeson CJ and Gummow J.
With respect to the grounds for judicial review before the primary judge, neither has any substance. They are as follows:
1.The Tribunal failed to put ‘information’ under Section 359A 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 ‘information’ 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.
The reference in Ground 1 to a visitor visa dated 10 December 2013 appears to be an error (there is no such reference in the Tribunal’s reasons) and I take it to be a reference to the cessation date of the last substantive visa (i.e., 10 September 2013). The primary judge correctly rejected the first ground on the basis that information as to the cessation of the substantive visa was part of the delegate’s decision which was provided to the Tribunal. The primary judge also correctly rejected the second ground based on cl 602.212(8) because the applicant did not meet the requirements of paragraphs (6)(a)–(e) and, in those circumstances, the Tribunal did not need to consider the issue of compelling personal reasons.
The application for leave to appeal raises no matter which is arguable and it should be refused with costs.
Alif Rahman by his litigation guardian, Emdad Hossain (NSD 2087 of 2018)
The same circumstances, except for age, apply in the case of Master Alif Rahman. His date of birth is 10 August 2010. An order should be made that pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the applicant’s father (Mr Emdad Hossain) be appointed as his litigation representative. The requirement for a supporting affidavit is waived. Master Alif Rahman’s grounds of review before the Federal Circuit Court and grounds of appeal to this Court are the same as those of his father. They fail for the same reasons.
The application for leave to appeal should be refused. The applicant’s litigation representative should pay the first respondent’s costs.
Salma Rahman (NSD 2088 of 2018)
The same circumstances, except for age, apply in the case of Ms Salma Rahman. Her date of birth is 10 February 1978.
Her grounds of review before the Federal Circuit Court and grounds of appeal to this Court are the same as those of Mr Emdad Hossain. They fail for the same reasons.
The application for leave to appeal should be refused with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 8 May 2019
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