Morrell v Minister for Immigration
[2017] FCCA 2372
•4 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRELL v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2372 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of the decision of the Administrative Appeals Tribunal affirming a Delegate of the Minister’s refusal of a Medical visa – applicant fails to appear at final hearing in this Court – reinstatement application – no basis for reinstatement because no reasonable excuse for not appearing at final hearing and no reasonable grounds to find jurisdictional error or procedural unfairness – Administrative Appeals Tribunal bound to affirm decision to refuse to grant Medical visa – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30 Migration Regulations 1994 (Cth) |
| Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 |
| Applicant: | LUKE MOSES MORRELL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1624 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 16 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2017 |
REPRESENTATION
The Applicant did not appear at the hearing.
| Counsel for the Respondents: | Mr D McLaren |
| Solicitors for the Respondents: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on 12 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1624 of 2016
| LUKE MOSES MORRELL |
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 Fiji aged 37 years, having been born on 11 March 1980.
By Application filed on 27 June 2016 he seeks to quash and have redetermined the decision of the second respondent, the Administrative Appeals tribunal (Tribunal) dated 27 May 2016 which affirmed the decision of the Delegate (Delegate) of the first respondent, the Minister for Immigration and Border Protection (Minister) dated 2 February 2016 refusing to grant to him a Medical Treatment (Subclass 602) visa (Medical visa).
Background
The applicant entered Australia on 26 July 2010 on a Visitor (Subclass 676) visa (Visitor visa) subject to the “no further stay” condition 8503 under the Migration Act 1958 (Cth) (the Act), accompanied by his wife and two minor children.
When the Visitor visa ceased on 26 October 2010 the applicant remained in Australia with his wife.
The Visitor visa was a temporary substantive visa (see definition of substantive visa in ss.5 and 30(2)(a) of the Act).
The applicant applied for the Medical visa on 25 January 2016. In section 18 of his Medical visa application form, where he was required to describe the medical treatment in Australia which he had arranged and the estimated costs thereof, he stated nothing at all.
At the time the applicant applied for the Medical visa on 25 January 2016 he did not hold a substantive temporary Visitor visa, it having ceased, as noted above, on 26 October 2010.
I note that the applicant’s wife also lodged a Medical visa application on 25 January 2016 and her own application in this Court for judicial review of the separate decision of the Tribunal of 27 May 2016 is the subject of a separate judgment to be delivered at the same time as this judgment is delivered.
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 Sch.2 to the Migration Regulations 1994 (Cth) (the 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 and could not meet the requirements stated in cl.602.212(6) of the Regulations 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 such that cl.602.213(5) therefore applied. Consequently it was necessary for him to satisfy criterion 3001 in Sch.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 26 October 2010: criterion 3001(1) and (2)(c)(iii).
Decision of Delegate
Unfortunately for the applicant he was some 62 months late in making his application for the Medical visa. He was required to apply within 28 days of 26 October 2010 but did not apply for the Medical visa until 25 January 2016.
Accordingly, the Delegate in her Decision Record of 2 February 2016 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 and she refused to grant one to him.
Decision of Tribunal
The applicant applied to the Tribunal on 17 February 2016 for review of the Delegate’s decision.
By letter to the Tribunal dated 20 May 2016 the applicant’s solicitor conceded that the applicant did not meet the criteria for the grant of the Medical visa, stating relevantly as follows:
We note that as neither applicant held a substantive visa, they would need to meet the requirements of 602.213(5) – Schedule 3.
Criterion 3001 states that the present application for a Medical Treatment visa be “…validly made within 28 days after the relevant day…”. The relevant day being the date on which the Morrell’s last held a substantive visa. As this day was in approximately October 2010, it is abundantly clear that the applicants could not then, and cannot now, meet 3001 and thus the refusal was foreseen.
However, we submit that there are factors in the matter of Mr and Mrs Morrell that warrant further consideration from the Tribunal and it would be reasonable for the Tribunal to refer such matters to the Minister for consideration under the Ministerial Intervention directions.
……………………………………………………………………………
Conclusion
We acknowledge that Mr and Mrs Morrell do not meet the criteria for grant of the Medical Treatment visa, Subclass 602 however, it cannot be denied that the applicants require in-depth medical assessment and treatment in order to deal with the murders of their family members in 2014.
Although we understand and respect that the Tribunal must adhere by the legislation procedure to affirm the Department’s decision, we kindly request that this very sensitive matter be referred to the Minister’s office for considering under Ministerial Intervention.
(emphasis added.)
The applicant appeared before the Tribunal on 27 May 2016 to give evidence and present arguments with his wife and his registered migration agent. At [5] and [8] of the Decision Record the Tribunal recorded that it was conceded that the applicant was unable to satisfy the requirements for the Medical visa. Paragraphs [5] and [8] state as follows:
[5]On 20 May 2016, the Tribunal received written submissions from the applicant’s migration agent. He stated that it is “abundantly clear” that the applicant does not satisfy the requirements of Schedule 3001 and that a refusal is foreseen. He submitted that the applicant is seeking that the Tribunal refer his case to the Minister for Immigration and Border Protection (the Minister) with a recommendation for Ministerial Intervention.
[8]The applicant was represented in relation to the review by his registered migration agent. He submitted that the applicant is unable to satisfy the requirements for the visa and requested that the case be referred to the Minister for Ministerial Intervention.
In the result the Tribunal found, consistently with the decision of the Delegate, that as the applicant did not at the time of his Medical visa application meet the requirements of cl.602.212(6), it was necessary for him to satisfy criterion 3001, but he could not do so because he did not lodge his Medical visa application within the required 28 day period.
The Tribunal affirmed the Delegate’s decision not to grant a Medical visa to the applicant and declined to refer its decision to the Minister for Ministerial intervention, leaving it to the applicant to make his own request to the Minister.
Grounds of Attack on Tribunal Decision in this Court
The grounds of the Application filed in Court are as follows:
1.The decision of the Tribunal:
(a) is affected by a jurisdictional error.
(b) the Tribunal failed to take into account relevant matters and considered irrelevant matters.
Particulars
(a) The Tribunal failed to consider the psychological effect suffered by the applicant as a result of the murder of his mother-in-law and sister-in-law in Fiji.
(b) Such matters included anxiety, depression and Post-Traumatic Stress Disorder.
(c) Due to the applicant’s ongoing mental health conditions, he was not able to express himself in a clear manner.
Course of Proceeding in this Court
Before turning to a consideration of the merits of the applicant’s Application for judicial review it is necessary to set out the progress of the proceeding in this Court.
The first return date of the Application was 29 July 2016 in my directions list. The applicant was present and procedural orders were agreed and made and the proceeding was set down for final hearing on 14 September 2016. Shortly after the procedural orders had been made in this matter his wife’s matter was called. She was not present but the applicant agreed that his wife’s and his own Application for judicial review should be heard together on 14 September 2016 and I made the same procedural orders in her case as I had made in his.
Neither the applicant nor his wife appeared at the hearing on 14 September 2016. On that occasion Mr McLaren, who appeared for the Minister, rang and spoke to Mr Morrell. He informed Mr McLaren that both he and his wife were in Melbourne and that they thought that the final hearing was to be heard on 29 September 2016.
In the circumstances, I was of the view that there was no good reason or excuse for the failure of the applicant to appear on 14 September 2016 and accordingly I dismissed his Application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001(Cth) (FCC rules). I made the further order on this occasion being:
4. In the event that the Applicant files an Application in a Case to set aside the order for dismissal today, that he be prepared, on the first return date of that application:
(a) to run his case to set aside the dismissal; and
(b) to run his case on his substantive application in relation to the Tribunal decision below.
Then by interlocutory application filed on 12 October 2016 the applicant sought the setting aside of the dismissal order of 14 September 2016 and reinstatement of his substantive Application on the basis of his affidavit of 12 October 2016. In that affidavit he asserted that after the directions hearing of 29 July 2016 he gave to his wife the final hearing date of 14 September 2016, but believed that she had incorrectly diarised the date due to lack of concentration stemming from her psychological difficulty.
In the circumstances and consistent with the fourth order that I had made on 14 September 2016 I directed that the interlocutory application for reinstatement and the substantive Application be set down for hearing on 16 December 2016 at 2.15pm and the parties were so advised in writing.
I record that at 9.03am on the morning of 6 December 2016, 10 days before the scheduled hearing of 16 December 2016, my Associate contacted the applicant by telephone on the mobile number given on his Application (as well as on the Application of his wife) and confirmed that he had received the correspondence from the Court in which he was informed of the hearing date of 16 December 2016 at 2.15pm in Court 8.1 here at 80 William Street. Having received that confirmation from the applicant, my Associate at 9.41am then sent the following SMS text message to the same mobile number:
Dear Mr Morrell,
I note confirmation of our telephone conversation this morning in which the hearing date and time of 16 December 2016 at 2.15pm at Court 8.1, 80 William Street Sydney was confirmed with you.
Regards,
Associate to Judge Dowdy
However, once again the applicant did not appear for the hearing at 2.15pm on 16 December 2016, nor did his wife. The applicant has never since been in contact with the Court.
In these circumstances I decided to proceed with the hearing, under r.13.03C(1)(e) of the FCC rules, of the interlocutory reinstatement application and to consider on that application the applicant’s substantive case and evidence with a view to first determining whether or not I should make an order for reinstatement.
Principles Governing an Application for Reinstatement
The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under r.13.03C(1)(c) of the FCC rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] as follows:
[7]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:
[4]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.
Consideration
I have come to the view that the interlocutory application seeking reinstatement should fail and be dismissed for the following reasons.
First, the applicant without any excuse whatsoever failed to appear in Court on 16 December 2016 to support and argue his application for reinstatement and this in itself would justify peremptory dismissal of the application.
Second, I do not consider that the applicant has established any reasonable excuse for his absence from the hearing on 14 September 2016. He was personally present in Court on 29 July 2016 when the hearing date of 14 September 2016 was set. He had a personal responsibility to record that date and comply with it and he cannot reasonably absolve himself from that responsibility by providing the correct date to his wife, whom he asserts suffers from a lack of concentration, and then rely on her misdiarization of the date. It would be quite impossible for this Court to conduct its business if a party could excuse failure to attend a final hearing by simply alleging the date of the hearing has been forgotten or there had been a misdiarization of its date.
Second, turning to the issue of prejudice, there is clearly no real or actual prejudice to the Minister if the proceeding was to be reinstated, but an absence of prejudice is not conclusive in the present circumstances and the element of finality in administrative decision-making is a factor that needs to be taken into account.
Third, and most importantly, the failure to establish any adequate explanation for the non-appearance on 14 September 2016 and the absence of actual prejudice to the Minister would not necessarily be decisive against reinstatement if the applicant had reasonably arguable grounds for success for his substantive application in this Court. However, in my view the decision of the Tribunal was clearly correct and the applicant has no arguable case that it is affected by jurisdictional error or procedural unfairness.
I take the ground of the Application to comprehend an assertion of jurisdictional error because:
a)the Tribunal failed to take into account a relevant matter being psychological damage suffered by the applicant as a result of the murder of his mother in law and sister in law in Fiji, including anxiety, depression and post-traumatic stress disorder; and
b)by reason of the applicant’s ongoing mental health conditions he was not able to meaningfully participate at the Tribunal hearing.
The first thing to be said about these health issues is that they were asserted to be the medical condition of the applicant’s wife and not of the applicant himself. Nevertheless, in any event the Tribunal had no power to take into account the medical conditions asserted in the ground, whether or not such medical conditions related to the applicant or his wife. The Tribunal had no power to take them into account 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 the Medical visa, as had been conceded by his solicitor in correspondence and at the Tribunal hearing itself: see [16] – [17] above. The Delegate was bound to refuse the Medical visa and the Tribunal bound to affirm the Delegate’s decision in this regard: see Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18]-[19] per Perram J and Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [6] per White J.
Further, there is not a skerrick of evidence that the applicant was not able to meaningfully participate in the hearing before the Tribunal on 27 May 2016 when his registered migration agent also appeared. There is no suggestion in the Decision Record of the Tribunal of any incapacity of the applicant to meaningfully participate in the Tribunal hearing. The applicant did not tender a transcript of the Tribunal hearing, although at the directions hearing of 29 July 2016 I had pointed out to him that because of this ground of attack on the Tribunal decision he should probably get such a transcript and the consent orders which he then entered into with the Minister placed the onus and responsibility for getting the transcript on him.
Finally, the applicant tendered no medical evidence to the effect that he could not meaningfully participate at the Tribunal hearing. In any event, even if the applicant had not been able to meaningfully participate that would not establish procedural unfairness resulting in practical injustice. This is because the Tribunal was bound by the criteria governing the grant of a Medical visa to refuse one to the applicant and nothing the applicant could have said at the Tribunal hearing could have affected the result, which in any event had been conceded by his solicitor and migration agent.
To sum up, in these circumstances the Delegate and the Tribunal were bound to refuse a Medical visa to the applicant and that remained the case whether or not the applicant suffered from the medical conditions asserted in the ground or was able to meaningfully participate in the Tribunal hearing.
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 and accordingly the interlocutory application for reinstatement must be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 4 October 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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