Mehmood v Minister for Home Affairs

[2018] FCCA 3238

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHMOOD v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3238

Catchwords:
MIGRATION – Medical treatment visa application – application for extension of time for making of application – time extended by Tribunal for receipt of further information or submissions – no response within extended time – hearing proceeded in absence of applicant – application for extension of time refused – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359(2), 359A, 360(3), 363(A), 476, 477(1), 477(2), div 5 pt 5

Migration Regulations 1994 (Cth), sch 2, cl. 602.213

Cases cited:

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Hasran v The Minister for Immigration and Citizenship (2010) 183 FCR 413

Applicant: RASHID MEHMOOD

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 387 of 2018

Judgment of: Judge Egan

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Brisbane

Delivered on: 5 November 2018

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the First Respondent: MinterEllison

Solicitors for the Second Respondent: Submitting an appearance

ORDERS

1. The Application for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be dismissed.

2. The Originating Application filed 18 April 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 387 of 2018

RASHID MEHMOOD

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who applied for a medical treatment visa on 2 May 2017. On 12 May 2017 a delegate of the Minister refused to grant a medical treatment visa because the delegate was not satisfied that the applicant had met clause 602.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). In relation to that clause, the delegate found that the applicant’s last substantive visa ceased on 4 September 2013, and that his medical treatment visa application was not lodged within 28 days of that date.

2. On 1 June 2017 the applicant sought review of the delegate’s decision before the tribunal. On 18 January 2018 the Tribunal wrote to the applicant and invited him to comment on, or respond to, certain information which it considered to be the reason, or part of the reason, for affirming the decision under review.  The Tribunal also invited the applicant to provide further information in support of his claims that he satisfied all of the requirements for the grant of a medical treatment visa. 

3. The Tribunal notified the applicant that if it did not receive the applicant’s comments or response by 1 February 2018, it could make a decision on the review without taking any further action to obtain his views on the information, or to obtain any further information. Further, the Tribunal notified the applicant that if he did not comply he would lose any entitlement he might have otherwise had under the Act to appear before the Tribunal to give evidence and present arguments.

4. On 1 February 2018, the applicant’s migration agent sent an email to the Tribunal which requested an extension of time to respond to the Tribunal’s letter dated 18 January 2018.[1] On the same day, the Tribunal sent an email to the applicant’s migration agent attaching a letter to the applicant whereby the Tribunal notified the applicant that it granted an extension of time until 15 February 2018, again further advising the applicant at that time that if it did not receive the applicant’s comments by that date, it could make a decision on the review without taking any further action to obtain his views on the information, or to obtain the further information, and that the applicant would lose any entitlement he might have otherwise had under the Act to appear before the Tribunal to give evidence and present arguments.

   [1]     See Court Book (“CB”) p. 48

5. The applicant did not provide a response to the Tribunal by 15 February 2018.   On 21 February 2018 the Tribunal affirmed the decision to cancel the applicant’s visa.[2] On 18 April 2018 the applicant filed an application pursuant to section 476 of the Migration Act 1958 (“the Act”) seeking an extension of time pursuant to section 477(2) of the Act in which to seek judicial review of the decision of the Administrative Appeals Tribunal dated 21 February 2018.

   [2]     CB p. 58 – 66.

6. Though the Court made procedural orders permitting the applicant to file and serve any amended application and any further evidence by 11 July 2018, and despite ordering the applicant to file written submissions by 8 October 2018, the applicant has not done so. The application filed on 18 April 2018 sets out one ground of review in support of the application for an extension of time, and one ground of review in support of the judicial review application. 

7. The Tribunal firstly had regard to the applicant’s loss of the right to a hearing before it.[3] The Tribunal recorded that the 18 January 2018 letter was sent to the last relevant address for service provided by the applicant being the address of his migration agent.  Further it noted that it was satisfied that that letter had been received, given the applicant’s migration agent’s request for an extension of time consequent upon receipt of that letter.

   [3]     CB p. 60 [11] – [19] of the reasons.

8. As to the Tribunal’s invitation made pursuant to section 359A of the Act, the applicant failed to provide his response before the time for giving it had passed, and in those circumstances, subsection 359C(2) and 360(3) applied, such that the Tribunal was entitled to make a decision on review without taking any further action to obtain information, in circumstances where the applicant was not entitled to appear before the Tribunal.

9. It was noted[4] that pursuant to sections 363(A) of the Act, the Tribunal was precluded from offering the applicant a hearing. The Tribunal also considered[5] whether to exercise its discretion under paragraph 363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that he met the requirements of a medical treatment visa.

   [4]     CB p. 60

   [5]     CB p. 60, [16] – [18] of the reasons.

10. The Tribunal observed that the applicant had been aware for more than nine months of the reasons for the visa application refusal.  The Tribunal, considering that the applicant had had a fair opportunity to provide any relevant comments or response within that time, and for him to satisfy the regulatory criteria within that time, decided not to exercise its discretion, and proceeded to determine the case on the evidence available to it as recorded.[6]

    [6]     CB p. 60, [19].

11. The Tribunal found that the applicant did not satisfy any of the criteria in clause 602.212(6) because he had not yet turned 50 years of age.[7] Because the applicant did not meet the subclause 602.212(6) criteria, and because the applicant did not hold a substantive temporary visa at the time of his application, and further because the last visa held was not a subclass 403 or 426 visa, the Tribunal noted that the applicant needed to meet criteria 3001, 3003, 3004 and 3005 of schedule 3 of the Regulations.[8]

    [7] CB p. 61, [22] and [23].

    [8] See CB p. 61, [25] – [26].

12. The Tribunal found that the applicant’s last substantive visa ceased on 4 September 2013, and that the applicant had applied for the medical treatment visa on 2 May 2017.[9] The applicant was required by criterion 3001 to have lodged the medical treatment visa application within 28 days of the “relevant day”, that being 28 days from the last day when he held a substantive visa – namely 4 September 2013. Because the application for a medical treatment visa was not made within 28 days of 4 September 2013, the applicant did not satisfy criterion 3001 and he, therefore, did not satisfy clause 602.213.[10]

    [9] Cl 602.213(3), 601.213(4), 601.213(5) Migration Regulations 1994 (Cth); CB p. 62, [28]

    [10] See CB p. 62, [29] – [30].

13. The application for judicial review filed on 18 April 2018 sets out one ground of review in support of the application for extension of time, namely that there would be a miscarriage of justice if the applicant was not allowed to proceed with the application, because the Tribunal’s decision was affected by jurisdictional error. As to that extension of time ground, it must be noted that the application was filed outside the 35 day statutory time frame under subsection 477(1) of the Act, and consequently, was incompetent unless the court granted an extension of time pursuant to section 477(2) of the Act.

14. The applicant’s reason for delay contained in his affidavit filed on 18 April 2018 was that he incorrectly created the application for financial hardship form and, therefore, his application could not be accepted for filing on 21 March 2018 when he faxed his application to the registry.  He thereafter asserted that his application had been received by the Family Court Registry, and not by the Registry of the Federal Circuit Court of Australia. The Minister acknowledged that he would not suffer any prejudice should the application for an extension be granted, and further acknowledged that the delay was “moderate”.

15. The Minister nonetheless submits that the proposed substantive ground of the application for review has no reasonable prospect of success, and that for that reason, the application for extension of time should not be granted.  The substantive ground for review was that the applicant was not afforded natural justice in that he did not get an opportunity to be heard at a hearing, thus precluding the applicant having an opportunity to verbally present his case, and substantiate his claims with proper evidence. 

16. The applicant submits that the tribunal should have allowed him to appear before it at the hearing, and that he was, therefore, denied natural justice. The Tribunal did, however, comply with its procedural fairness obligations under Division 5 of Part 5 of the Act which is an exhaustive statement of the natural justice hearing rule.[11]

    [11]    See Migration Act 1958 (Cth), s.357A; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66].

17. The Tribunal had fulfilled its obligations to the applicant by sending its letters dated 18 January 2018[12] and 1 February 2018,[13] which the Tribunal sent to the applicant’s registered address, namely his migration agent.  The Tribunal carried out its obligation to invite the applicant to comment on, or respond to, the delegate’s determinations in refusing to grant the medical treatment visa, and to provide further information in support of his claims.  The Tribunal properly fulfilled its obligations in that regard. 

    [12]    See CB p. 41.

    [13]    See CB p. 51.

18. Notwithstanding receipt of the letters by the applicant, the applicant failed to respond by the nominated date of 15 February 2018. In those circumstances, the Tribunal was entitled to make a decision on the review without taking any further action to obtain the applicant’s views on the information. The combined effect of subsections 360(3) and 363A of the Act was such that the applicant could not appear at any further hearing before the Tribunal.[14]

    [14]    See Hasran v The Minister for Immigration and Citizenship (2010) 183 FCR 413 at [25] – [32].

19. The Tribunal complied with its procedural fairness obligations pursuant to Division 5 of Part 5 of the Act, and did not err by making its decision on the review without offering the applicant the opportunity to appear before it. The applicant has no reasonable prospect of success in respect of that substantive application.

20. The Tribunal did not have any jurisdiction to waive the schedule 3 criteria, including the requirement that the applicant apply for a medical treatment visa within 28 days after the last day when the applicant held a substantive visa, whether on account of compelling and compassionate circumstances, or for any other reason.[15]

    [15]    See Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [17] – [19] per Perram J; Weng v Minister for Immigration and Border Protection [2017] FCCA 1409 at [8] – [10] per Middleton J.

21. The Tribunal also acted reasonably in all of the circumstances The Tribunal did extend the original period for responding to its invitations at the request of the applicant.  The applicant did not help his cause by failing to respond by the 15 February 2018 deadline.

22. The Tribunal was reasonably entitled to proceed to make a decision on the application for review without taking any further action to obtain the applicant’s views on the information in accordance with subsections 359C (2) and 360(3) of the Act. The application for extension of time is refused and the application for review is accordingly dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  12 November 2018