Monn v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 702

FEDERAL COURT OF AUSTRALIA

Monn v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 702

JENNIFER N MONN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 149 OF 2002

DOWSETT J
6 JUNE 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	6 JUNE 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The motion to vacate the order made on 16 April 2003 be dismissed.

2.        The applicant pay the respondent’s costs of the motion today.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	6 JUNE 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a motion to vacate an order which I made on 16 April 2003, dismissing an application for review of a decision of the Migration Review Tribunal.  That order was made when the applicant did not appear.  It is not necessary to go into the circumstances in which she did not appear save to say that there had been considerable prior difficulty in contacting her.  It seemed to me at the time that her failure to appear was not as a result of any incapacity to do so.  I am not persuaded that such view was wrong.  However it is not necessary to go any further into the matter.  It is quite complicated and would require a detailed examination of the Court file.  It is sufficient for present purposes to say that there would be no point in vacating the order unless Ms Monn could demonstrate that there was some reasonably viable point to be ventilated in any such review.  I proceed upon the basis that if she can demonstrate a viable argument I will grant her application to set aside the order notwithstanding my disquiet as to the way in which she has conducted these proceedings in the past.  After listening to her and to the solicitor for the Minister it seems to me to be quite clear that there is no point to be ventilated.

2. A visa of the kind which she seeks is within sub-class 685 which provides for “Medical Treatment (Long Stay)” visas.  Pursuant to par 685.216 an applicant must satisfy criteria 3001 and 3004 in Schedule 3 in order to qualify for such a visa.  In effect, criterion 3001 requires that any application be made within twenty-eight days of, in the present applicant’s case, her ceasing to hold a substantive visa, which event occurred on 21 September 2001.  Criterion 3004 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa for reasons which are beyond her control.  The applicant is unable to satisfy either of these criteria.

3. As to criterion 3001 her application was not made until 30 November 2001, her substantive visa having expired on 21 September.  From her point of view a substantial difficulty arose in that she suffered a car accident on 17 October, that is some twenty-six days after the expiry of her visa.  Indeed, as I understand it, the consequences of that accident led to her seeking the medical treatment visa which is the subject matter of these proceedings.  She says, with some justification, that she was not in a position to apply for the visa on any occasion between 17 October, when she suffered the injury, and 19 October, when the twenty-eight day period expired.  However it seems that there is no mechanism for extending the time prescribed by criterion 3001.  It follows that the applicant is left to seek the favourable exercise of such discretion as resides in the Minister.

4. The applicant is also unable to satisfy criterion 3004.  There seems to be no basis upon which it could be said that the reason for her not holding a substantive visa was because of factors which were beyond her control.  The only visa which she has held expired prior to the accident.  In those circumstances, neither the Department nor the Tribunal could have reached any conclusion other than that the applicant was not entitled to the visa which she sought.

5. The grounds upon which the applicant seeks review of the Tribunal’s decision were extensive and include allegations that she was denied procedural fairness.  When one appreciates the true nature of the issues which were before the Tribunal, it is clear that none of those matters could affect the inevitable outcome.  In those circumstances, there is no point to be ventilated on any application for review.  The motion to vacate the order made on 16 April should be dismissed.  I order that the applicant pay the respondent’s costs of the motion.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            18 July 2003

Solicitor for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 June 2003
Date of Judgment:	6 June 2003