Matar v Minister for Immigration
[2017] FCCA 1587
•12 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1587 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application by applicant for a medical treatment visa – application for reinstatement for non-appearance in this Court – applicant asserts jurisdictional error by Administrative Appeals Tribunal in affirming delegate’s decision not to grant a medical treatment visa – applicant could not satisfy criterion 3001 under the Migration Regulations 1994 (Cth) in that he was 57 months late in making his application for the medical treatment visa – assertion of jurisdictional error not arguable – application for reinstatement refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 |
| Applicant: | RAAD MATAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 788 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms C Hillary |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on 15 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 788 of 2016
| RAAD MATAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Lebanon aged 36 years, having been born on 20 May 1981.
By Application filed in this Court on 5 April 2016 he seeks to quash and have redetermined the decision of the Administrative Appeals Tribunal (Tribunal) dated 18 March 2016 affirming a decision dated 3 November 2015 of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) not to grant to him a Medical Treatment (Visitor) (Subclass 602) visa (Medical visa).
Background
The Applicant applied in Australia for the Medical visa on 30 October 2015.
He had first arrived in Australia on a Prospective Marriage (Subclass 300) visa on 8 August 2007. This was a temporary substantive visa (see the definition of substantive visa in s.5 of the Act and s.30(2)(a)).The relationship the subject of that visa broke down and the Applicant married his current wife on 18 October 2014. They have one child who was born on 7 June 2012.
The Applicant last held a substantive temporary visa on 21 December 2010 and he thus did not hold a substantive temporary visa at the time of his application for the Medical visa on 30 October 2015.
In his Medical visa application he stated he would be under medical care while in Australia for the period from 1 November 2015 to 30 October 2016. In section 18 of his Medical visa application form, in which he was required to describe the medical treatment in Australia which he had arranged and the estimated cost, he responded:
I am the husband of Australian wife. I am the father of an Australian son. I was asked by the Department of Immigration to depart Australia. I made arrangements for my Australian son to have his passport ready. I contacted my family in Lebanon and they strongly advised me that all the children are in danger. I am psychologically disturbed and need counselling so as to make a decision concerning my departure.
Grounds for the Grant of a Medical Visa Under Subclass 602
An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: cl.602.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
As at the date of decision the Applicant had to satisfy cl.602.213 which provided as follows:
602.213
(1)Subclause (2) applies if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant held a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(2)The substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(3)Subclauses (4) and (5) apply if:
(a)the applicant was in Australia at the time of application; and
(b)the applicant did not hold a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4)The last substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5)The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
(emphasis added.)
As the Applicant did not hold a substantive temporary visa at the time of his application for the Medical visa on 30 October 2015 and could not meet the requirements stated in cl.602.212(6)(b) and (f) in that he neither had turned 50 years of age nor had a written statement from a Medical Officer of the Commonwealth that he was medically unfit to depart Australia, cl.602.213(3) was satisfied so that cl.602.213(5) therefore applied. Consequently it was necessary for him to satisfy criterion 3001 in Schedule 3 to the Regulations.
Relevantly, criterion 3001 required that the Applicant’s application for a Medical visa must have been made within 28 days after the “relevant day” which for the Applicant was the last day when he held a substantive visa, namely 21 December 2010: criterion 3001(1) and 3001(2)(c)(iii).
Decisions of Delegate and Tribunal
Unfortunately for the Applicant he was more than 57 months late in making his application for the Medical visa. He was required to apply within 28 days after 21 December 2010 but did not apply for the Medical visa until 30 October 2015.
Accordingly the Delegate and subsequently the Tribunal, in affirming the Delegate’s decision, found that the Applicant did not satisfy criterion 3001 and therefore did not satisfy cl.602.213 and thus did not meet the requirements for the grant of a Medical visa.
I note that the Tribunal’s decision and reasoning were in accordance with the analysis of the relevant regulations and criteria set out in the decision of Dowsett J in Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 (Saifuddin).
Grounds of Attack on Tribunal Decision and Procedural History in This Court
Grounds
In his Application filed in this Court on 5 April 2016 the Applicant asserted the following Grounds for review of the Tribunal’s decision:
1.The Tribunal Member failed to take into consideration our exceptional and compelling circumstances as per evidence given under oath and written submission addressed to the Minister.
2.I will provide detailed information when I receive copy of my file and the requested CD of the hearing.
Procedural History
The Application was first returnable before me on 29 April 2016 when the Applicant did not appear. I made orders adjourning the matter until 20 May 2016 and required the Minister to give notice of the adjourned hearing date and the Minister’s legal representatives did so. As it turned out the Applicant arrived at the Court at 10.30am after the Minister’s legal representative had left and the Applicant was informed of the adjourned hearing date of 20 May 2016.
The Applicant failed to appear at the second directions hearing on 20 May 2016 and I dismissed his Application at the Minister’s request pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) and ordered him to pay the Minister’s costs in the amount of $1,367.
On 24 June 2016 the Applicant filed an Application in a Case seeking to set aside the order for dismissal of the Application on 20 May 2016 and reinstating it (First Application in a Case). The First Application in a Case was supported by an affidavit of the Applicant affirmed 23 June 2016. The Applicant and the First Respondent’s lawyers were advised that the return date of the Application in a Case for reinstatement would be 8 July 2016.
On 8 July 2016 the Applicant again did not appear and at the Minister’s request I dismissed the First Application in a Case and ordered the Applicant to pay the Minister’s costs in the amount of $983.
On 15 July 2016 the Applicant filed a further Application in a Case (Second Application in a Case) which, although inaptly expressed, I took to be a further application for reinstatement of the Application in this Court and which was supported by an affidavit of the Applicant affirmed 14 July 2016. He then affirmed a further affidavit in support of his Second Application in a Case for reinstatement affirmed on 9 July 2016.
The Second Application in a Case was made returnable before me on 29 July 2016 when the Applicant appeared and I set down the hearing of his Second Application in a Case for reinstatement and his substantive Application to be heard together on 14 September 2016, when the Applicant appeared in person and Ms Hillary appeared for the Minister.
Second Application in a Case Seeking Reinstatement
The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under Rule 13.03C(1)(c) of the Rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] as follows:-
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
(emphasis added)
A similar statement of principle was made by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] in the following terms:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
I do not consider the Applicant has given to the Court a satisfactory explanation of his failure to attend before the Court on the three occasions being 29 April 2016, 20 May 2016 and 8 July 2016, either in his affidavit evidence or in cross-examination.
I do not consider that the Applicant’s affidavit affirmed 23 June 2016 gives an adequate or reasonable excuse or reason for not appearing in Court at the first return date of his Application on 29 April 2016 at the appointed time. He says that he was unable to attend Court on time on 29 April 2016 because his wife was two months’ pregnant and bleeding but he does not give any evidence of how his wife’s condition meant he himself could not come to Court or at least alert the Court and the Minister’s legal representatives that he would not be in attendance. That affidavit also fails to give an adequate excuse for his failure to attend Court at all on 20 May 2016. He merely asserts that he had to rush with his wife back home after they had caught the train to come to the Court on 20 May 2016. He does not condescend to give a reason why he was required to rush his wife home on this date.
I do not consider that his affidavit of 9 July 2016 gives any adequate excuse for him not attending Court on the first return date of his First Application in a Case. He proves by that affidavit that his wife attended Westmead Hospital on 7 July 2016 and was discharged on 8 July 2016 with vaginal bleeding. However, cross-examination established that his wife was discharged at 12.20am on 8 July 2016. He said that he had to look after his son while his wife was in hospital on 7 July 2016 but his case was in Court before me on 8 July 2016. He gives no explanation of why he could not himself have come to Court with his 4 year old son on that occasion or again at least alert the Court and the Minister’s legal representatives of his likely non-attendance. Further, in cross-examination the Applicant could give no plausible explanation of his failure to advise the Court and the Minister’s legal representatives of his likely non-attendance on either 20 May 2016 or 8 July 2016.
Turning to the issue of prejudice, I find that there is no particular prejudice to the Minister if I made an order for reinstatement.
Neither of the first two factors, namely an adequate explanation for the non-appearance or whether there is any prejudice to the Minister would necessarily be decisive against reinstatement if the Applicant had reasonably arguable prospects of success on his substantive Application in this Court alleging that the Tribunal decision was affected by jurisdictional error.
However, I do not consider that the Grounds relied upon by the Applicant disclose an arguable case that the Tribunal decision was affected by jurisdictional error.
Ground 1
Ground 1 (see [14] above) asserts that the Tribunal failed to take into consideration “our exceptional and compelling circumstances”.
This Ground appears to assert that the Tribunal should have excused the Applicant’s failure to lodge his application for a Medical visa in the required 28 day period after the expiry of his last substantive temporary visa on the basis of “exceptional and compelling circumstances”.
However, it was not open to the Delegate or the Tribunal to take into account any such “exceptional and compelling circumstances”. The Tribunal had no power to do so and had no power to exercise any discretion in the Applicant’s favour for such reasons. The fact of the matter was that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse a Medical visa and the Tribunal bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18]-[19] per Perram J; Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [5]-[6] per White J and Saifuddin at [14]-[15].
Accordingly, Ground 1 fails to establish that the Tribunal’s decision was affected by jurisdictional error.
Ground 2
Ground 2 also fails to establish jurisdictional error. No further “detailed information” was provided to the Court. No transcript of the Tribunal hearing engrossed from the CD of the hearing before the Tribunal was tendered in evidence by the Applicant nor did he file a Written Outline of Submissions.
Ground 2 simply does not constitute a meaningful Ground and fails to establish that the Tribunal’s decision was affected by jurisdictional error.
Conclusion
In my view the decision of the Tribunal to affirm the Delegate’s decision to refuse a Medical visa to the Applicant was inevitable in the circumstances and not affected by jurisdictional error. It therefore follows that there is no point or purpose and it is not in the interests of the administration of justice that the substantive Application filed in this Court on 5 April 2016 be reinstated.
Accordingly the Second Application in a Case for reinstatement filed in this Court on 15 July 2016 is to be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 12 July 2017
2
5
4