Mustafa v Minister for Home Affairs; Syeda v Minister for Home Affairs

[2019] FCCA 179

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSTAFA v MINISTER FOR HOME AFFAIRS & ANOR

SYEDA v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 179

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decisions – refusal of medical treatment visas – interlocutory dismissal of show cause applications – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Zaman v Minister for Home Affairs & Anor [2019] FCCA 164

Applicant: SYED HOSSAIN MUSTAFA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 980 of 2018

Applicant: FARIZA SYEDA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 982 of 2018

Judgment of: Judge Driver

Hearing date: 31 January 2019

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

Mr Mustafa appeared as litigation guardian for the Applicant in SYG982/2018 and on his own behalf in SYG980/2018

Solicitors for the Respondents: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

Syed Hossain Mustafa v Minister for Home Affairs & Anor (SYG980/2018)

1. This matter is to be heard concurrently with matter SYG982/2018.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

Fariza Syeda v Minister for Home Affairs & Anor (SYG982/2018)

1. This matter is to be heard concurrently with SYG980/2018.

2. The orders made by the Registrar on 3 May 2018 are amended as follows:

   13.Pursuant to rule 11.11 of the Federal Circuit Court Rules 2001 (Cth), the applicant’s father, Syed Hossain Mustafa, is appointed as the litigation guardian for the applicant.

   14.The requirement for a litigation guardian to file an affidavit under rule 11.11(2) of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.

3. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

4. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 980 of 2018

SYED HOSSAIN MUSTAFA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

SYG 982 of 2018

FARIZA SYEDA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. I have before me two applications seeking judicial review of two decisions of the Administrative Appeals Tribunal (Tribunal) each made on 7 March 2018. In each case, the Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants a medical treatment visa.

The present proceedings

1. There are two applicants who are a father and his infant daughter.  A third case involving the wife of the applicant father and mother of the daughter was dealt with yesterday by me, Zaman v Minister for Home Affairs & Anor.[1]  The issues in each case are the same.  The only difference is that Ms Zaman was the active visa applicant and Syed Hossain Mustafa and Fariza Syeda applied as members of her family group.  It is not clear to me why separate visa applications were made and why they were dealt with separately by the Tribunal. 

   [1] [2019] FCCA 164

2. Separate judicial review applications were also made.  In procedural orders made by a Registrar it was ordered that the files travel together. Having dealt with Ms Zaman’s case yesterday and perused the files for the remaining two matters, I formed the view that those two matters should be heard concurrently. Mr Mustafa and the solicitor for the Minister agreed to that course.

3. I also noted that in Ms Syeda’s case no order had been made for a litigation guardian. The solicitor for the Minister handed up short minutes of order which had been agreed in her case at the directions hearing on 3 May 2018. The agreed orders on that occasion included an order for a litigation guardian and relief from the obligation to file an affidavit under rule 11.11(2) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). For some reason, probably inadvertence, those two orders were not made by the Registrar. I have augmented the Registrar’s orders to add those two orders in the case of Fariza Syeda.

4. In each of these remaining two cases, I have before me the judicial review application and supporting affidavit, the court book and the submissions prepared on behalf of the Minister. 

5. As I explained to Mr Mustafa, given that he and his daughter sought the visas as members of the family group of Ms Zaman, the fate of their visa applications depended on the fate of her visa application.  Further, given that I found yesterday in the case of Ms Zaman that she had no arguable case of jurisdictional error by the Tribunal, it was virtually inevitable that the same conclusion would be reached in these two cases.  Mr Mustafa conceded that that was so.  There is nothing in these two cases to distinguish them from the case of Ms Zaman. 

Conclusion

1. Having regard to the Minister’s legal submissions, with which I agree, I conclude that neither Ms Syeda nor Mr Mustafa are able to demonstrate an arguable case of jurisdictional error by the Tribunal and in each case I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

2. In view of the dismissal of these two applications, the Minister sought a composite order for costs against Mr Mustafa on his own behalf in his application and in light of his position as litigation guardian in the case of Fariza Syeda.  Both Mr Mustafa and the Minister’s solicitor made oral submissions on the issue of costs. 

3. Given that three separate applications were filed, there was necessarily some duplication of work, putting the Minister to additional costs.  Mr Mustafa told me that he had wanted the three cases heard concurrently but that is not reflected in the agreed procedural orders.  There was simply an order that the files travel together. 

4. It is regrettable that two hearings involving two court attendances have been necessary.  The costs order made in these two matters should reflect the additional work which has been required of the Minister but also the fact that the three cases probably should have been heard concurrently. 

5. In all the circumstances I will order in the matter of Syed Hossain Mustafa that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000, and in the case of Fariza Syeda I will order that there be no order as to costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       4 February 2019