KOUWEIDER v Minister for Immigration
[2015] FCCA 3148
•20 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOUWEIDER v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3148 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal provided applicant a reasonable opportunity to provide information requested by the Tribunal pursuant to s.359A(1) of the Migration Act 1958 (Cth) (Act) – whether Tribunal was obliged to invite the applicant pursuant to s.360(1) of the Act to give evidence and provide arguments – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(2), 359B(2), 359C(2), 360(1), 360(3), 379A, 379A(5)(a), 379C(5), 476(2), 476(4) |
| Applicant: | AREF KOUWEIDER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2844 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2015 |
REPRESENTATION
| No appearance behalf of or by the applicant |
| Solicitors for the Respondents: | Mr A Day of DLA Piper |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,138.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.
The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2844 of 2014
| AREF KOUWEIDER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 14 October 2014 the applicant filed an application in this court seeking judicial review of a decision made by the second respondent (Tribunal). In that decision the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical Treatment visa).
On the first court date, which took place on 12 November 2014, consent orders were made setting down the matter for a show cause hearing. The show cause hearing was scheduled to take place at 10.15 am on 25 November 2015. On 17 November 2015 the applicant sent a fax to the registry requesting that the show cause hearing be adjourned. The reason given was that the applicant was getting married and was going away on a honeymoon. To that fax the applicant attached the reception lounge and hotel reservation, and a flight booking.
At my request, the matter was relisted before me on 19 November 2015 for the purpose of considering the applicant’s application for the adjournment. On that day the applicant appeared. The applicant stated what was stated in the fax, that is to say, that he wished that the hearing which had been set down for 25 November 2015 be adjourned, and that he wished it to be adjourned because he was getting married.
I informed the applicant that the application for show cause could be heard by me at 10.15 am on 20 November 2015. The applicant originally said that he wanted more time. In response to my observation that he had one year to prepare, the applicant agreed that the application to show cause be set down for hearing at 10.15 am on 20 November 2015. I accordingly made orders that the show cause hearing listed at 10.15 am on 25 November 2015 be vacated, and that the show cause hearing be listed at 10.15 am on 20 November 2015.
When the matter was called this morning there was no appearance by the applicant. Before I came on the bench, I was informed by my associate that the applicant was not present in court. I directed one of my associates to contact or attempt to contact the applicant by using the mobile telephone number provided for in the application. I am informed by my associate – and, of course, I have no reason to disbelieve and do believe – that the mobile telephone number specified in the application was accessed at 10.20 am, 10.21 am and at 10.22 am. In relation to the attempted calls at 10.20 am and 10.21 am, the mobile number rang six times and then stopped. There did not appear to be a message service. On the attempt made at 10.22 am, the mobile did not ring and there did not appear to be a message service. In those circumstances, the Minister has applied for an order that the application be dismissed pursuant to r.13.03C(1) of the Federal Circuit Court Rules (Cth).
I am not minded to dismiss the application pursuant to that rule. However, as I indicated to Mr Day who appeared for the Minister, I intended to proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth). That provides:
If a party to a proceeding is absent from a hearing… the Court may do…[among other things], proceed with the hearing generally or in relation to any claim for relief in the proceeding.
In those circumstances, therefore, I propose to proceed with the application that is before me today.
As I have said, the application is one in which the Minister seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant, who is a citizen of Lebanon, seeks judicial review of a decision made by the Tribunal affirming the decision of a delegate of the Minister not to grant the Medical Treatment visa. To assess whether the applicant has an arguable case for relief, it is necessary to review some background facts. I begin with the criteria the applicant needed to satisfy in order to have been entitled to a Medical Treatment visa.
The criteria are specified in subclass 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant was in Australia at the time he applied for the Medical Treatment visa. That meant that the applicant had to satisfy either:
a)cl.602.213(1)(b) of Schedule 2, which required that at the time he applied for the Medical Treatment visa, the applicant held a substantive temporary visa other than the visas specified in cl.602.213(2) of Schedule 2; or
b)if he did not hold a substantive visa at that time and the requirements of cl.602.212(6) were not met, criteria 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations.
Criteria 3001(1) is relevant. It requires that the application for a visa be validly made within 28 days after the “relevant day” within the meaning of subclause 3001(2) of Schedule 3 to the Regulations. In the circumstances of this case, the “relevant day” is that provided for in paragraph (c) of subclause (2). That paragraph applies if, among other things “an applicant ceased to hold a substantive visa on or after 1 September 1994”. Where that paragraph applies, the relevant day is “the last day on which the applicant held a substantive visa”.
Thus, in this case, the applicant was required to apply for a Medical Treatment visa 28 days after the last day on which the applicant held a substantive visa. The applicant applied for the Medical Treatment visa on 12 May 2014. As at that date, the applicant did not hold a substantive visa. The applicant, however, had held a substantive visa that was a subclass 572 student visa that had been granted to the applicant on 15 June 2009, and which was valid until 19 May 2010.
By letter dated 29 August 2014 the Tribunal invited the applicant to comment on or respond to information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason or a part of the reason for affirming the delegate’s decision. The letter identified the following information:
a)the records of the Department of Immigration and Border Protection indicated that the applicant’s last substantive visa was a subclass 572 visa that had been granted to him on 15 June 2009 and was valid until 19 May 2010; and
b)the applicant applied for the visa on 12 May 2014 which was more than 28 days after the expiry of the applicant’s last substantive visa.
The Tribunal stated that this information was relevant to the review because it indicated the applicant is not eligible to make a Medical Treatment visa application in Australia. The letter further stated that the information:
…indicates that you were not the holder of a substantive visa at the time of your current visa application, and that your previous substantive visa, a student visa, expired more than 28 days before the application was made. As you are under 50 years of age, and clearly do not meet the requirements of cl.602.212(6), and in the circumstances, if the tribunal relies on the information, the tribunal may find that you do not meet cl.602.213 because you do not meet Item 3001 of Schedule 3 to the Regulations, as you are required to do. If the tribunal finds that you do not meet cl.602.213, it will affirm the decision of the review. The tribunal has no discretion to take into account the reasons why you did not apply for your visa at an earlier time.
The letter invited the applicant to give his comments or respond to the above information in writing. The letter stated that the applicant’s comments or response should be received by the Tribunal by 12 September 2014. The letter also stated that if the applicant could not provide his written comments or response by 12 September 2014 he could ask the Tribunal for an extension of time in which to provide the comments or response.
It is apparent that the Tribunal sent the letter pursuant to s.359A(1) of the Migration Act 1958 (Cth) (Act). That subsection provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Subsection 359A(2) of the Act provides that, unless the applicant is in immigration detention, the information that must be given under s.359A(1) must be given by one of the methods specified in s.379A of the Act. One of the methods permitted by s.379A of the Act is provided for in s.379A(5)(a) of the Act, namely by email to the last email address provided to the Tribunal by the recipient in connection with the review.
Subsection 359B(2) provides that if the Tribunal invites an applicant to give information or a response otherwise than at an interview, the information or the comments or the response are to be given within a period specified in the invitation, being a prescribed period, or, if no period is prescribed, a reasonable period. A period has been prescribed for the purposes of s.359B(2) of the Act by reg.4.17(4) of the Regulations. That period is one that commences when the applicant receives the invitation, and ends at the end of 14 days after the day the person receives the invitation, or, if the person agrees in writing to a shorter period of not less than one working week, the shorter period. Under s. 379C(5) of the Act:
If the Tribunal gives a document to a person by email, the person is taken to have received the document at the end of the day on which the document is transmitted.
The Tribunal sent its letter to the applicant by email on 29 August 2014 to the email address the applicant specified in the section of the application form headed “Correspondence Details”. The applicant has not suggested, and there is no material before me that suggests, that the applicant provided to the Tribunal a different email address after he filed his application for review. The applicant did not respond to the Tribunal’s letter. The Tribunal, relying on s.359C(2) of the Act, decided to make a decision on the review without taking any further action to obtain the applicant’s views of the information. Further, having made that decision, the Tribunal was not required to invite the applicant, pursuant to s.360(1) of the Act, to appear before the Tribunal to give evidence and present arguments.
The Tribunal found that the applicant did not hold a substantive visa at the time he applied for the Medical Treatment visa, and the last substantive visa the applicant held expired on 19 May 2010. That meant the applicant filed his application for the Medical Treatment visa more than 28 days after 19 May 2010 and, therefore, did not satisfy cl.602.213 of the Regulations. The Tribunal also found the applicant did not meet cl.602.212(6) of Schedule 2 to the Regulations.
In his application for review the applicant states three grounds. The first is:
1. The delegate failed to comply with S.58 of the Migration Act
That raises no arguable claim for relief where, as is the case in this application, the Minister’s decision is reviewable under Part 5 of the Act. Such decision is a “primary decision” within the meaning of s.476(4) of the Act; and because of s.476(2) of the Act, this Court does not have jurisdiction in relation to such decisions.
The second ground of review is:
2. The Second Respondent made a jurisdictional error in that it denied the applicant procedural fairness under 359A of the Migration Act 1958 and/or failed to take into account relevant considerations in failing to provide the Applicant with a reasonable time frame time [sic] to provide relevant information in support of the matter.
This, too, does not disclose an arguable case. The Tribunal required the applicant to provide the information by 12 September 2014. Given that the Tribunal sent its letter of 29 August 2014 by email on that day, the applicant was given the 14 day for responding that is prescribed by reg.4.17 of the Regulations. Further, the Tribunal’s letter provides that if the applicant could not provide written comments or a response by 12 September 2014 he could ask the Tribunal for an extension of time in which to provide the comments or response. There is nothing on the material before me to indicate that the applicant made any such request.
The third ground is:
3. The Second Respondent made a jurisdictional error in that it denied the applicant procedural fairness under 359A of the Migration Act in that it failed to allow the applicant a right to a hearing or attendance at any hearing.
This ground, too, discloses no arguable case. Having exercised its discretion under s.359C(2) of the Act to make a decision on the review, without taking any further action to obtain the applicant’s views on the information the Tribunal identified in its letter dated 29 August 2014, s.360(3) of the Act operated to deny the applicant a right to be invited under s.360(1) of the Act to a hearing.
For these reasons I am satisfied the application filed in these proceedings raises no arguable case for the relief it seeks. I propose, therefore, to make an order dismissing the application pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 November 2015
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