Lababidi v Minister for Immigration

[2018] FCCA 2545

FEDERAL CIRCUIT COURT OF AUSTRALIA

LABABIDI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2545

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – no arguable case of jurisdictional error identified – 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), s.476

Migration Regulations 1994 (Cth), cl 602.212, 602.213 of Sch 2, Sch 3

Applicant: ABDUL HAMID LABABIDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1006 of 2017

Judgment of: Judge Street

Hearing date: 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Sydney

Delivered on: 10 September 2018

REPRESENTATION

The Applicant appeared in person:

Solicitors for the Respondents: Ms S Gaussen
Sparke Helmore

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1006 of 2017

ABDUL HAMID LABABIDI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 28 February 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant’s last substantive visa expired in 1995. The applicant applied for the visa on 27 June 2016. On 28 June 2016, the delegate made a decision refusing to grant the applicant a medical treatment visa.

3. The applicant applied for review on 27 July 2016 and appeared before the Tribunal on 27 February 2017 to give evidence and present arguments. The Tribunal identified the requirements of cl 602.212(6) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) including the requirement that the applicant is medically unfit to depart Australia as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth. The Tribunal referred to the applicant having turned 50 but that the Tribunal did not have a Medical Officer of the Commonwealth who had issued a statement as required that the applicant is unfit to depart Australia. It was in those circumstances that the Tribunal found the applicant failed to meet the criteria under cl 602.212(6).

4. The Tribunal found the application had not been lodged within the 28 days of the relevant day, and that the applicant did not satisfy criterion 3001 or cl 602.213(5) and found the applicant accordingly failed to meet the criteria under cl 602.213 and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 April 2017. The grounds in the application are as follows:

   1. The Tribunal had medical evidence yet failed to accept that I am medically unfit to depart Australia.

   2. Even though my application was not lodged within 28 days I do have compelling circumstances which were not considered by the Tribunal.

2. On 27 April 2017, a Registrar of the Court made orders giving the applicant an opportunity to file amended application, affidavit evidence and submissions. No such documents were filed. On 15 August 2018, this Court gave orders giving the applicant a further opportunity to file affidavit evidence or submissions, and again, no such documents were filed.

3. 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) and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that when he lodged his application he had been in an age bracket that met the criteria and maintained that he was unfit to depart Australia. The applicant referred to the long duration over which he had been in Australia. This Court does not have power to decide the case on compassionate or discretionary grounds. The Court’s powers are confined to considering in the presence case whether there is a reasonable argument that the Tribunal’s decision is unlawful or unfair. The applicant’s submissions from the bar table in substance invite the Court to engage in a merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error in the conduct of the review or the decision of the Tribunal.

Ground 1

1. Ground 1 contends a state of affairs as to the applicant’s ability to depart Australia in circumstances where there was a mandatory criterion that the applicant had to meet in order to obtain the visa. That mandatory criterion required a written statement supporting the applicant’s contention from a Medical Officer of the Commonwealth in accordance with cl 602.212(6)(f). No such statement was provided to the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review.

2. The Tribunal had no discretion as to the application of the mandatory criteria. The applicant’s assertion to the contrary that he was unable to depart does not identify a basis upon which it could be said that there was any arguable case of jurisdictional error by the Tribunal. Ground 1 fails to identify an arguable case of jurisdictional error. 

Ground 2

1. In relation to ground 2, the criteria that the Tribunal was required to apply did not include consideration of compelling circumstances. Accordingly, ground 2 fails to disclose any arguable case of jurisdictional error.

Conclusion

1. Whilst the Court is sympathetic to the applicant’s circumstances and understands the period of time over which the applicant has remained in Australia, the position is not one that enlivens any power of this Court to grant relief. No arguable case of jurisdictional error is disclosed by the application. The Court is 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: 19 October 2018