Nawab v Minister for Immigration

[2018] FCCA 2543

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAWAB v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2543

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the applicant was able to meaningfully participate in the hearing – the Tribunal identified a logical and rational reason in support of proceeding with the hearing by telephone – no arguable case of jurisdictional error – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.360, 425, 476

Migration Regulations 1994 (Cth), cl.602.213 of Schedule 2, Schedule 3

Applicant: KHAN NAWAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2922 of 2017

Judgment of: Judge Street

Hearing date: 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Sydney

Delivered on: 10 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2922 of 2017

KHAN NAWAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision that the Administrative Appeals Tribunal (“the Tribunal”) made on 6 September 2017, affirming a decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. 

2. The applicant’s last substantive visa expired on 29 October 2011. The applicant applied for the visa on 16 March 2017. On 20 March 2017, the delegate made a decision to refuse to grant the application. 

The Tribunal’s decision

1. The applicant applied for a review, and the applicant was invited to attend a hearing, on 31 August 2017. The applicant sought a postponement on that hearing because he said he had a migraine, and he presented to hospital with a headache which was resolved with Panadeine.  The medical report stated that the applicant was unable to attend normal duties for one day on 31 August 2017.

2. The Tribunal agreed to postpone the hearing and forwarded the applicant a new invitation to attend a hearing on 5 September 2017. The day before the hearing the applicant indicated by email that he was not feeling well and wanted a rescheduled hearing. The applicant referred to his GP informing him that he needed bedrest. The Tribunal noted no further details or medical report was provided. 

3. The Tribunal sent an email back to the applicant informing the applicant that the request for a postponement lacked any medical evidence to support that he was unable to attend the hearing and present arguments, and that the Tribunal could give the applicant an opportunity to appear by telephone.

4. The applicant did not appear at the intended hearing on 5 September 2017, and the applicant was telephoned by the Tribunal and said he was not well but that he was willing and able to proceed with the hearing by telephone. The Tribunal noted the telephone hearing was conducted with the assistance of an interpreter. The Tribunal recorded that it was satisfied the applicant was able to present evidence and arguments in support of his claims at the hearing.

5. The Tribunal noted the applicant conceded that he did not meet the requirements when they were discussed with him. The Tribunal also raise with the applicant whether there was anything else he wished to tell the Tribunal, and he said no. The Tribunal identified the criterion of the present case was whether the applicant satisfied the requirements under cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

6. The Tribunal found the applicant’s last substantive visa ceased on 29 October 2011, and that his present application was made on 16 March 2017. The Tribunal referred to the criteria that must be met, and found that the visa application was not made within 28 days of the relevant day, and that the applicant did not satisfy the criterion 3001, and thus did not meet cl 602.213(5) of Schedule 2 to the Regulations. Accordingly, the Tribunal affirmed the decision under review. 

Before this Court

1. These proceedings were commenced on 20 September 2017. On 23 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed submissions containing two grounds which relevantly provide as follows:

   1. According s 425 of the Migration Act 1958 the AAT failed because the translater was Pushto language translater but having a different dilact. I was not able to understand when translater was speaking to me.

   2. According migration act of 1958 AAT failed to give me a fair chance because I was sick and was hospitalised on the first date hearing with AAT. I sent medical report that I can not attend the hearing so the tribunal postponed my hearing for three days. After three days I got a call from tribunal for phone interview, as was I was sick at that time tribunal insisted that I have to give the interview on phone. I was not feeling well and was not able to understand the conversation between translator and me.

   Your kind honour is requested to consider my application and send it back to AAT for hearing.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant offered to produce medical evidence in relation to his circumstances. The Court indicated it was not in a position to receive new evidence. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

4. Page 56 of the Court Book identifies a medical certificate dated 3 September 2017, which referred to the applicant suffering from vomiting and headache and being unfit from 4 September 2017 to 6 September 2017 inclusive. The Tribunal’s reasons record the applicant agreeing to proceed with the hearing by telephone, and record that the applicant was able to present evidence and arguments, and that the applicant conceded at the hearing that he did not meet the requirements hat needed to be met for the grant of the visa. 

Ground 1 of the applicant’s written submissions

1. There is nothing on the face of the Tribunals’ reasons to suggest that the applicant had any difficulty with the interpreter, and no other evidence has been provided to identify any arguable case of alleged material error in relation to the interpreter or the applicant understanding the interpreter, or the Tribunal understanding the evidence of the applicant given through the interpreter.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with s 360 of the Act. The Court assumes the reference to s 425 of the Act in that regard is an error. There is no basis to find any arguable case of error as raised by ground 1 in the applicant’s written submissions. 

Ground 2 of the applicant’s written submissions

1. In relation to ground 2, the applicant seeks to contradict what was recorded in the Tribunal’s reasons. Again, no evidence has been put on by the applicant to support the assertion that he was unable to meaningfully participate in the hearing, and the Tribunal’s reasons are inconsistent with that proposition. There is no basis to find that the applicant did not understand what was said by the Tribunal via the interpreter. No arguable case of jurisdictional error is made out by ground 2 of the applicant’s written submissions. 

Substantive application

1. In relation to the substantive application, the generalised assertion that the “decision has lawful errors” does not identify any arguable case of jurisdictional error. Further, the generalised assertion that “the Tribunal did not provide the proper environment to the applicant” again does not identify any arguable case of jurisdictional error. On the face of the material before the Court, the applicant agreed to proceed with the telephone hearing it was open to the Tribunal to do so.

2. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness. Further, the Tribunal identified a logical and rational reason in support of proceeding with the hearing, being the applicant’s agreement to that, and accordingly it cannot be said that the Tribunal acted legally unreasonably in proceeding with the hearing by telephone. Nothing disclosed by ground 1 or ground 2 identifies any arguable case of jurisdictional error.

Conclusion

1. As no arguable case of jurisdictional error is made out by the applicant’s application or via the written submissions filed by the applicant, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules. 

2. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 October 2018