Iftikhar v Minister for Immigration

[2018] FCCA 1157

FEDERAL CIRCUIT COURT OF AUSTRALIA

IFTIKHAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1157

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by misinforming itself as to the true nature of the evidence – whether the Tribunal erred in arriving at its decision based on no reasonable satisfaction – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth), cll.602.212, 602.213 of sch.2, criteria 3001, 3003, 3004 and 3005 of sch.3

Applicant: SHEIKH AMIR IFTIKHAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2843 of 2017

Judgment of: Judge Smith

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2843 of 2017

SHEIKH AMIR IFTIKHAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The last substantive visa held by the applicant was a subclass (FA-600) visa that expired on 14 November 2013.  On 30 March 2017, the applicant lodged an application for a medical treatment (Visitor) (class UB) visa.  On 5 April 2017, a delegate of the Minister made a decision to refuse to grant that visa.  The applicant applied to the Administrative Appeals Tribunal for review of that decision.  He attended a hearing conducted by the Tribunal on 31 August 2017.  On the same day, the Tribunal made a decision to affirm the delegate’s decision. 

2. The Tribunal in its reasons noted that at the hearing the applicant accepted that he did not meet the requirements for the grant of a visa.  It found at [14] of its reasons that the applicant was not 50 years of age and so did not meet the requirements of cl.602.212(6) of the Migration Regulations 1994 (Cth) and he did not hold a subclass 403 or 426 visa.  The applicant had to comply with cl.602.213(5) by meeting the sch.3 criteria 3001, 3003, 3004 and 3005.  I will come back to the reference by the Tribunal to the subclass 426 visa.

3. In considering whether the applicant met the criteria in 3001, the Tribunal found at [17] that the applicant ceased holding a temporary substantive visa on 14 November 2013 and so that for the purpose of that clause the relevant day was 14 November 2013.  On the basis that the visa application was made on 30 March 2017, the Tribunal concluded that the applicant did not meet criterion 3001 and so did not satisfy cl.602.213(5) of the Regulations. 

4. At [18] of its reasons the Tribunal noted that it had considered the applicant’s evidence that he had had difficult times separating from his wife and certain other events that had occurred in his home in Pakistan; however it found, as it had explained to the applicant at the hearing, that it had no discretion in relation to the requirements of cl.602.213.  The applicant said that he had understood that.  For those reasons, the Tribunal affirmed the decision of the delegate.

5. The applicant now seeks judicial review of the Tribunal’s decision.  There are two grounds in the application.  The first is that the Tribunal misinformed “itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application”.  It is not clear what this means, but it seems to me that it has nothing to do with the facts before the Court in this case. 

6. The true nature of the applicant’s evidence included the critical facts of his age, where and when he made his application and the last subclass of visa held by him.  Those were the critical matters for the Tribunal and on the basis of its conclusions in respect of those matters, it was inevitable that the Tribunal became satisfied that the applicant did not meet the relevant criteria. 

7. I say that in spite of the reference at [15] in the Tribunal’s reasons to the subclass 426 visa.  The application for the visa in this case was made on 30 March 2017.  By that time, by operation of the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth), the reference to a subclass 426 visa in cl.602.213 had been removed. However, as submitted by the Minister in his written submissions as the last held substantive visa of the applicant was a subclass 600 visa, the conclusion that the applicant did not meet the criteria, given the other findings, was inevitable and any error in this respect was immaterial to the Tribunal’s decision.

8. The second ground is the Tribunal had no jurisdiction to make the decision because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth). That is a generic type of submission that, again, pays no regard to the actual findings of the Tribunal. The Tribunal’s satisfaction in this case was based upon the critical facts that I have outlined above. Such satisfaction was clearly based upon the inferences and conclusions drawn logically from the material before it, and on the basis of those conclusions it was inevitable, given the criteria for the grant of the visa, that the Tribunal concluded that the criteria had not been satisfied. Once that conclusion was reached, the only result was that the decision under review had to be affirmed.

9. For those reasons, the application is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       9 May 2018