Nawab v Minister for Immigration and Border Protection
[2019] FCA 103
•7 February 2019
FEDERAL COURT OF AUSTRALIA
Nawab v Minister for Immigration and Border Protection [2019] FCA 103
Appeal from: Application for leave to appeal: Nawab v Minister for Immigration & Anor [2018] FCCA 2543 File number: NSD 1761 of 2018 Judge: NICHOLAS J Date of judgment: 7 February 2019 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Act 1958 (Cth) ss 360, 425
Cases cited: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Date of hearing: 7 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent The second respondent submitted save as to costs ORDERS
NSD 1761 of 2018 BETWEEN: KHAN NAWAB
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
7 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)NICHOLAS J:
Before me is an application for leave to appeal against a judgment of the Federal Circuit Court of Australia made on 10 September 2018 dismissing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) an application by the applicant (“Mr Nawab”) for judicial review of a decision of the second respondent (“the Tribunal”) made on 6 September 2017. By that decision the Tribunal affirmed a decision of a Delegate of the first respondent (“the Minister”) made on 20 March 2017 not to grant Mr Nawab a Medical Treatment (Visitor) (Class UB) visa.
The principles guiding the determination of applications for leave to appeal were considered by the Full Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [25]-[40]. Generally speaking, leave to appeal may be granted:
·where the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and
·substantial injustice would result if leave were refused, supposing the decision to be wrong.
The authorities show that the prospects of the applicant’s proposed appeal may be an important factor in determining whether or not to grant leave to appeal and that it will not usually be granted if the proposed appeal has no reasonable prospects of success.
The grounds of review relied upon by Mr Nawab before the primary judge included two that were set out in written submissions filed by him and referred to by the primary judge at [9] in his reasons. These were 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.
…
The primary judge considered each of these grounds but found that neither gave rise to any arguable case of error.
By his first ground Mr Nawab contended that the Tribunal breached s 425 of the Migration Act 1958 (Cth) (“the Act”) because the Pashto interpreter who assisted him at the Tribunal hearing was of a different dialect and Mr Nawab was unable to understand him. The primary judge assumed the reference to s 425 was intended to be a reference to s 360 of the Act which would seem to be correct.
The primary judge found there was nothing on the face of the Tribunal’s reasons to suggest Mr Nawab had any difficulty with the interpreter and that no other evidence was provided to identify any arguable case of error in relation to the interpreter. The primary judge found that on the face of the material before the Court, Mr Nawab had a real and meaningful hearing and the Tribunal complied with s 360 of the Act. The primary judge found ground one did not raise any arguable case of error.
By his second ground Mr Nawab contended that he was not given a “fair chance” because he was sick and hospitalised on his first scheduled hearing date, and that the Tribunal later “insisted’ he attend the hearing by telephone. According to Mr Nawab, he was not feeling well and did not understand the interpreter. The primary judge noted that there was no evidence to support the contention that he was unable to meaningfully participate in the hearing and found that the Tribunal’s reasons were inconsistent with that contention. The primary judge found there was no basis to find that Mr Nawab did not understand what was said by the Tribunal through the interpreter.
In relation to the grounds set out in Mr Nawab’s application for judicial review, the primary judge found the generalised assertion that “the decision has lawful [sic] errors” did not identify any arguable case of jurisdictional error. The primary judge also found that the generalised assertion that “the Tribunal did not provide the proper environment to the applicant” did not identify any arguable case of jurisdictional error. His Honour found that on the face of the material before the Court, Mr Nawab agreed to the telephone hearing and that it was open to the Tribunal to proceed on that basis. The primary judge found the Tribunal complied with the requirements of procedural fairness and identified logical and rational reasons in support of its decision to proceed with the telephone hearing, namely, Mr Nawab’s agreement to proceed.
The primary judge concluded that Mr Nawab had not demonstrated an arguable case of jurisdictional error and dismissed his application for judicial review with costs pursuant to r 44.12 of the FCCR
Mr Nawab’s draft notice of appeal consists of the following 2 grounds:
1.The Hon, Judge failed to consider that the Tribuna1 acted in a manifestly unreasonable way when dealing with the review application of medical visa.
2.The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.
Insofar as proposed ground 1 is seeking to take issue with the Tribunal’s refusal of the second adjournment request, this was considered and dealt with by the primary judge. Further, it could not be characterised as a decision that was so unreasonable that no reasonable decision maker could have arrived at it. On the material before the primary judge, and as his Honour found, any application for judicial review based on contention that the Tribunal committed a jurisdictional error by not granting a second adjournment could not have any reasonable prospects of success. As the Tribunal explained in its reasons for decision, it agreed to postpone the hearing after the Mr Nawab’s first adjournment request however declined the second adjournment request on the basis that no medical evidence had been provided in support of it. When the Tribunal contacted Mr Nawab by telephone when he failed to attend the scheduled hearing, Mr Nawab indicated he was not well but was willing to proceed with the hearing by telephone. The Tribunal was satisfied Mr Nawab was able to present evidence and arguments at the hearing. Its decision was plainly not one that lacked an “evident and intelligible justification”.
The proposed grounds assert that the primary judge dismissed the application without considering the “legal and factual errors” in the Tribunal’s decision. The applicant has not identified any legal or factual errors in the Tribunal’s decision. Nor has he identified any error in the primary judge’s reasons.
The Tribunal made the following findings which led it to conclude that Mr Nawab’s application for a medical treatment visa could not be granted:
·Mr Nawab’s last substantive visa expired on 29 October 2011;
·Mr Nawab’s application for a medical treatment visa was made on 16 March 2017 which was more than 28 days after the last substantive visa had lapsed; and
·Mr Nawab’s last substantive temporary visa was not a Subclass 403 or 426 Visa; and
·Since Mr Nawab had not attained 50 years of age, he could not meet the requirements of cl 602.212(6).
The Tribunal’s reasons explained why, given these findings, it was not open to the Tribunal to find that the Mr Nawab satisfied the requirements of clause 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) as were applicable in the circumstances of Mr Nawab’s case.
In the course of the hearing, I drew to Mr Nawab’s attention the fact that the Tribunal had refused the application for a medical treatment visa on the basis that it was made outside the relevant time period. When invited to deal with this aspect of the Tribunal’s reasons Mr Nawab did not indicate any disagreement with any of the findings, but dealt with other matters that do not bear on the correctness of the Tribunal’s decision. Given the findings made by the Tribunal that I have identified, there is no room to doubt the correctness of the Tribunal’s ultimate conclusion. Nor I do not think there is any basis to doubt the correctness of the primary judge’s decision. Leave to appeal will be refused on that basis. There will be an order dismissing the application for leave to appeal with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 21 February 2019
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