Patel (litigation guardian) v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1081

Federal Circuit and Family Court of Australia

(DIVISION 2)

Patel (litigation guardian) v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1081

File number(s):	BRG 569 of 2021 BRG 116 of 2022 BRG 179 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	6 December 2022
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed
Legislation:	Migration Act 1958 (Cth).
Division:	Division 2 General Federal Law
Number of paragraphs:	52
Date of last submission/s:	6 December 2022
Date of hearing:	6 December 2022
Place:	Brisbane
In BRG569 of 2021
Counsel for the Applicant:	The Litigation Guardian, Yogeshkumar Kashiram Patel appearing on behalf of the Applicant with the assistance of an interpreter
Counsel for the First Respondent:	Ms Rayment, Solicitor
Solicitor for the First Respondent:	Sparke Helmore
In BRG 116 of 2022
Counsel for the Applicant:	The Applicant’s husband appearing as friend of the Court for the Applicant with the assistance of an interpreter
Counsel for the First Respondent:	Ms Rayment, Solicitor
Solicitor for the First Respondent:	Sparke Helmore
In BRG 179 of 2022
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Ms Rayment, Solicitor
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

BRG 569 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

YOGESHKUMAR KASHIRAM PATEL AS LITIGATION GUARDIAN FOR AKS YOGESH KUMAR PATEL

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	6 DECEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to Division 11.2 of the Federal Circuit And Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Yogeshkumar Kashiram Patel be appointed litigation guardian for the applicant and the requirement to file and affidavit be dispensed with.

2.The application for extension of time is refused.

3.The application filed on 9 December 2021 is otherwise dismissed

4.The Litigation Guardian, Yogeshkumar Kashiram Patel pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,930.

5.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

ORDERS

BRG116 of 2022

BETWEEN:

ARPANABEN YOGESHKUMAR PATEL
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	6 December 2022

THE COURT ORDERS THAT:

1.The application filed on 16 March 2022 is dismissed.

2.The Applicant pay the costs of the First Respondent of and incidental to the application fixed in the sum of $5,500.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

[Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

]

ORDERS

BRG 179 of 2022

BETWEEN:

YOGESHKUMAR KASHIRAM PATEL
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	6 December 2022

THE COURT ORDERS THAT:

1.The application filed on 16 March 2022 is dismissed.

2.The Applicant pay the costs of the First Respondent of and incidental to the application fixed in the sum of $5,500.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

[Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

]

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. I am hearing three applications, but because they all revolve around the same facts, it is best that I hear all three applications at the same time. 

2. It is convenient to look at the chronology of the matter so that one can understand the three different applications that are before me. 

3. On 25 September 2008, the Applicant, Mr Patel, and the other Applicant, Mrs Patel, arrived in Australia.  They arrived here on student visas.  Those visas were cancelled on 25 June 2010.  Nevertheless, both Applicants remained in Australia as unlawful noncitizens.  Their son, Mr Aks Yogesh Patel, was born on xx xxxx 2014. On 19 December 2014, Mr Patel lodged an application for [redacted]. 

4. In the [redacted] application, Mr Patel was the primary Applicant, and Mrs Patel and their son were included as members of his family unit.  That application was refused by the delegate on 8 October 2015.  The Applicant went to the Administrative Appeals Tribunal (“the AAT/Tribunal”), then to this Court, and then to the Federal Court.  When the Federal Court dismissed their appeal on 19 November 2019, it meant that all avenues of appeal and review regarding the other visa were now exhausted. 

5. About three and a half weeks later, on 13 December 2019, the Applicants sought ministerial intervention.  The matters were not referred to the Minister.  On 16 December 2019, three days later, the Applicants attempted to lodge a second application for a [redacted]. 

6. On 10 September 2020, the Applicants, who were still in the country, applied for medical visas.  The Applicants sought to remain in Australia from 19 September 2020 to 18 December 2020 on the basis that they were each separately suffering from anxiety and depression.  The Applicants, having filed those applications for the medical visas, needed to satisfy a number of criteria. 

7. The relevant criteria for this matter were that they had to satisfy the Minister that they were genuine temporary entrants who would return to their home country after receiving the appropriate treatment.  They were asked to comment on concerns regarding their intentions to return to their home country. 

8. Mr Patel was also invited to comment on information given by him to the department during an interview on 26 March 2020.  In that interview, Mr Patel said that he and his wife would do all that they could to remain in Australia until their son reached his 10^th birthday, because then he would be eligible for Australia citizenship.  The Applicants did not respond to those requests by the Department for comment. 

9. On 18 December 2020, the delegate of the Minister refused to grant the medical visas on the basis that the criteria were not met.  The delegate had found that the Applicants were attempting to utilise this visa pathway to maintain ongoing residence and that they did not genuinely intend to remain in Australia temporarily. 

10. Mr and Mrs Patel applied for a review of that decision to the AAT on 18 September 2020. 

11. The delegate looked at the decision regarding the son separately and refused to grant that visa on 19 February 2021. 

12. Mr Patel paid the proper fee for his application to the AAT in September 2020, and Mrs Patel paid the proper fee for her application to the AAT in September 2020.  When Mr Patel, who was acting as litigation guardian for his son, lodged the review application form for his son with the AAT on 11 March 2021, he only paid part of the fee.  Mr Patel lodged an application for a reduction in the fees on the basis of financial hardship.  The AAT considered the application but refused it and made the decision that Mr Patel, on behalf of his son, had to pay the full fee. 

13. The AAT sent the Applicant a letter on 14 April 2021 telling him that he had to pay the remaining application fee within 14 days, that is, by 28 April 2021.  Mr Patel, as litigation guardian, did not pay the remainder of the fee, and he did not contact the Tribunal in relation to the outstanding fee. 

14. On 7 May, the Tribunal was constituted.  The Tribunal considered that Mr Patel had been given a reasonable period to pay the remainder of the fee.  The fee was not paid.  This meant that the application for review on behalf of the son, which was lodged on 11 March, was not a valid application because the proper fee had not been paid; therefore the Tribunal found that it had no jurisdiction in the matter.  This meant that the application for a medical visa by the son was now at an end. 

15. On 10 May 2021, the Tribunal wrote to Mr Patel, at the same email address to which they had sent all other correspondence, with a copy of the decision of the Tribunal.  A case note for the AAT notes that on 11 May 2021, Mr Patel called the switchboard of the AAT.  It was noted that Mr Patel was not pleased about the AAT decision, and he did not want the fee he had already paid refunded to him but instead wanted his matter to be reinstated.  Mr Patel said that he had not received the letter of 14 April requesting the remaining fee to be paid.  Mr Patel said that he was not aware that he had up until 28 April 2021 to pay the remaining fee. 

16. The AAT officer advised Mr Patel to send an email requesting reinstatement and stating the reasons for the request.  The officer said that his email would be assessed by the presiding member and a decision would be made as to whether to reinstate the application or not. 

17. On 4 June 2021, Mr Patel wrote to the AAT saying:

    Dear sir Hi I am Yogesh Kumar aks father please kindle request for his medical visa application to re open, which is refuse because of fees but we didn't got any email for rest fees and I m happy to pay all fees please consider our request aks patel 04/05/2014

18. On 7 June, the AAT member considered all of the material and decided that there was no jurisdictional error and that the case cannot be reopened.  On 7 June 2021, the AAT sent Mr Patel a letter, informing his that his request was refused.   The letter said that “once we have made a decision under the Migration Act 1958 (Cth), we have no power to take any further action on the review”.

19. On 9 December 2021, the father as litigation guardian for his son asked this Court to review that decision of the AAT; that is, the decision that the AAT had had no jurisdiction. 

20. As can be seen from the chronology, this application was well outside the 35 day deadline to file such an application before the Court, and leave would be need to be given by the Court to allow the application to be filed out of time.

21. On 17 February 2022, the AAT held a hearing in relation to the valid application that had been made by Mr Patel and the valid application that had been made by Mrs Patel. 

22. The AAT looked at the claims that Mr Patel had made as well as the claims that Mrs Patel had made.  It noted that the evidence that Mr Patel was putting before the Tribunal was a medical certificate from a Dr Bilwani, stating that Mr Patel has depression and has been commenced on appropriate treatment.  The AAT noted that that was the entirety of the medical evidence given by the Applicant in support of a visa application.  The AAT also noted that when they put the whole history to Mr Patel, his response was that he and his wife wished to stay in Australia “long term” to have work rights and to raise their son. Mr Patel said that he and his wife were also depressed by their circumstances and that history. 

23. The Tribunal said that nothing said or submitted by Mr Patel, in the context of his past visa history, gave the Tribunal any confidence that the Applicant would comply with the requirement of being a genuine, temporary entrant.  The Tribunal said that the requirements of cl 602.215 were not met, which meant that the decision under review had to be affirmed. 

24. On 16 March 2022, Mr Patel asked this Court to review that decision. 

25. With regard to Mrs Patel, the AAT noted the evidence that was before them.  In particular, it noted the one line medical report from Dr Bilwani, the same doctor who was treating Mr Patel. That report said that Mrs Patel had “generalised anxiety disorder and depression” and had been “commenced on appropriate treatment”.  The Tribunal noted that that was the entirety of the medical evidence given by Mrs Patel in support of her visa application. 

26. The AAT went through the visa history and put that to Mrs Patel.  The AAT said to Mrs Patel that there was a very strong inference that she did not wish to stay in Australia only temporarily for the purposes of a medical visa.  Mrs Patel indicated that she and her husband were telling the truth. 

27. The Tribunal said that there was nothing that gave them any confidence that Mrs Patel would comply with the requirements of cl 602.215.  The Tribunal said that that clause had not been met and therefore the Applicant didn’t meet the requirements for the grant of the visa.  For those reasons, the Tribunal affirmed the decision not to grant Mrs Patel a medical treatment visa. 

28. On 16 March 2022, Mrs Patel also asked this Court to review that decision of the AAT. 

29. This matter has been set down before me for some time now.  Unfortunately, when it was set down, the Registrar forgot to make an order allowing Mr Patel to be the litigation guardian for his son.  I will make that order in the son’s application. 

30. The application for review of Mr Patel and the application for review of Mrs Patel had the exact same grounds of application.  Those grounds were:

    1.   The Tribunal fell into jurisdictional error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.

    2.   The Tribunal exceeded its jurisdiction in making its decision to affirm the first Respondent’s decision.

    3.   The Tribunal denied the Applicant procedural fairness;

31. When the matter commenced today, via Microsoft Teams through a telephone link, the Applicant had not appeared.  The Court ended up telephoning the Applicant.  The Court then went ahead with the hearing, and the Applicant, Mr Patel, was assisted by an interpreter.  Mr Patel told the Court that he would be speaking both on his behalf, his wife’s behalf, and his son’s behalf. 

32. The Applicant did not expand upon the grounds of the application when invited to do so.  Instead, the Applicant told the Court that his application was genuine.  He said, in my words, that he was perplexed at why the application for the visa had not been accepted.  He said that he cannot understand what evidence “they” are looking for or what he could provide.  He said to me, “I provided a certificate from a doctor.”   He said that, “They don’t believe me, and I want the Court to look into my matter.” 

33. To help the Applicant understand what the Tribunal had found, I went through why it was that the AAT said that they would affirm the decision. 

34. I asked him if he wanted to say anything about those matters and he said that he did not.  I then asked him about what did he want to say about the application in regard to his wife.  He said to me that it was the same as his application, and he did not have anything more to add with regard to his wife’s matter. 

35. I then asked the Applicant about the son’s application and explained the need for the Court to look at why the application was filed late and whether there was an arguable case before the Court could allow an extension of time.  He kept telling me that his application was not out of time and that he had done everything at the same time, therefore he could not have been out of time.  The Applicant said to me that he had not been notified and that he had paid the proper fee. 

36. In looking at the merits of the application by Mr and Mrs Patel, it seems to me that the grounds of application are very general and of themselves do not illustrate any jurisdictional error. 

37. With regard to ground one, there is nothing in the material that would allow this Court to come to the view that the Tribunal misinformed itself as to the nature of the evidence of the application.  The Applicant’s evidence was that he was suffering from a medical condition and wanted to stay in Australia to be treated and would then leave Australia.  The Tribunal understood that this was the Applicant’s evidence; it just simply did not accept it as being truthful.  This was a conclusion open to the Tribunal and does not illustrate any jurisdictional error.  Therefore, ground one of both Mr Patel’s application and ground one of Mrs Patel’s application fails. 

38. The Tribunal was tasked with assessing whether the Applicants met the criteria for a medical visa.  The Tribunal completed the task it was supposed to complete.  Therefore, it cannot be said that the Tribunal exceeded its jurisdiction, because it did do exactly what its jurisdiction allowed or even mandated it to do.  This means that ground two in Mr Patel’s application and ground two in Mrs Patel’s application fail.

39. The Tribunal received the application of Mr Patel and Mrs Patel and it invited them to a hearing.  It looked at all of the evidence before it and it even allowed Mr and Mrs Patel to comment on information that the Tribunal had before it.  It cannot be said that the Tribunal in any way denied either Mr Patel or Mrs Patel any procedural fairness.  In his submissions before me today, Mr Patel did not suggest that there was any procedural unfairness.  This means that ground three of Mr Patel’s application and ground three of Mrs Patel’s application also fails.

40. The verbal submissions made to me today by Mr Patel are really an invitation to look at the factual matter because Mr Patel does not agree with what the Tribunal has concluded. It is impermissible for this Court to conduct a merits review.  There is nothing in any of the submissions of Mr Patel that would illustrate any jurisdictional error. 

1. I have looked at the decision thoroughly because Mr Patel and Mrs Patel are self-represented.  As the Minister has pointed out, there are some typographical errors in paragraph 10 of the Tribunal decision concerning Mr Patel.  These are quite obviously typographical errors as they are not repeated in the decision regarding Mrs Patel.  They do not cause me to conclude that there is any jurisdictional error that has infected the reasons of the Tribunal. 

2. With respect to the application for extension of time made by the son, with Mr Patel as his litigation guardian, there are three aspects to which a Court looks when deciding whether to exercise the discretion to extend time. 

3. They are, firstly, “what is the reason for the late filing”? Or “what is the excuse for not filing on time”?  Secondly, “what, if any, prejudice is there to the Respondent, in this case the Minister”?  The third matter in relation to this particular case is whether the Applicant has an arguable case that the decision of the Tribunal was infected by jurisdictional error.  I will look at this third aspect first. 

4. It is trite to say that the Tribunal can only look at a matter if there is a valid application before it.  An application will only be valid if it is lodged properly and the applicable fee has been paid.  If the applicable fee has not been paid, then it is not a valid application.  If it is not a valid application, then the Tribunal has no jurisdiction to hear the matter. 

5. The Applicant alleges that he did pay the Tribunal fees accordingly, but the Tribunal did not receive the money order.  The Applicant claims that he was not notified that the full fee had not been paid. 

6. As I have already indicated when going through the chronology of this matter, the Tribunal did notify the Applicant on 14 April 2021 that the request for reduced fee had been refused and the Applicant had to pay the resulting remainder of the application fee.  The notice was sent to the same email address for which every other notification was sent.  It is very difficult to accept the claim that the Tribunal did not notify the Applicant when the email has actually been produced by the Tribunal. 

7. The claim that the Applicant had paid the Tribunal fees but the Tribunal did not receive the money order is not corroborated by the evidence.  The communication by the Applicant to the AAT on 11 May 2021, and again on 4 June 2021, is inconsistent with the Applicant having paid those fees. 

8. For those reasons, I am of the view that the Applicant has not established an arguable case that the Tribunal decision that they had no jurisdiction in the matter was infected by jurisdictional error. 

9. The Minister has properly conceded that the prejudice to the Minister if the application for extension were granted is not sufficient by itself to justify the non-granting of the extension. 

10. As to what excuse there was for not filing in time, the Applicant has belligerently stuck to a mantra that his application was not out of time and it was filed within the 35 days.  This is clearly not the case.  When the Applicant filed this application on 9 December 2021, he acknowledged that the application was made out of time.  In the actual application, he said that he was not aware of the time limit for the judicial review in Court and required an extension of time to seek justice.  This could clearly not be the case, and it is of note that the Applicant did not repeat this submission in his oral submissions before me today. 

11. The fact is that this application was filed 216 days after the Tribunal made its decision that it had no jurisdiction to hear the application.  This means it was filed 181 days after the 35-day time limit had expired. 

12. There has been no sufficient excuse or reason as to why the application was filed out of time.  I make the following orders to dispose of all three matters.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       18 January 2022