Patel v Minister for Immigration
[2018] FCCA 2507
•13 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2507 |
| Catchwords: MIGRATION – Medical treatment visa. |
| Legislation: Federal Circuit Court of Australia Act 1999, ss.17A Federal Court of Australia Act 1976 |
| Spencer v Commonwealth (2010) 241 CLR 118 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 |
| Applicant: | NILESHKUMAR PRAHALADBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2092 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 August 2018 |
| Date of Last Submission: | 13 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr A. Moss of Clayton Utz |
ORDERS
Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,562.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2092 of 2017
| NILESHKUMAR PRAHALADBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of India who lodged an application for a Medical Treatment visa in March 2017. That application was made while the applicant was in Australia. On 24 March 2017 the application was refused by a delegate of the first respondent (“Minister”). On 20 April 2017 the applicant applied to the second respondent for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
On 5 July 2018 the Minister filed an application in a case seeking summary dismissal of the proceeding on the basis that it has no reasonable prospects of success. The matter is before the Court for consideration of that interlocutory application. For the reasons which follow the applicant’s application will be dismissed as the Minister seeks.
RELEVANT PROCEDURAL PROVISIONS
Section 17A of the Federal Circuit of Australia Act 1999 relevantly provides:
17A Summary judgment
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…
Rule 13.10 of the Federal Circuit Court Rules 2001 (“Rules”) relevantly provides:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…
Section 17A was designed to have general application and to strengthen the power of the Court to deal with unmeritorious proceedings by broadening the grounds on which the Court can dispose of them summarily. The operation of that provision and the analogous provision in the Federal Court of Australia Act 1976 have been discussed in several cases, most significantly in Spencer v Commonwealth (2010) 241 CLR 118. In that case, the plurality held that no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation let alone as a definition of its content, saying:
… full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is “no reasonable prospect” of success. (per Hayne, Crennan, Kiefel and Bell JJ at 141 [60])
Their Honours were of the view that the elucidation of the term would best proceed by decided cases giving it content over time, noting that it was already apparent that authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 could not be relied on to define the scope of the term.
RELEVANT PRINCIPLES
In Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Perry J said at [6]-[7]:
6.The test for summary dismissal laid down by r.26.01(a) of the FCR (no reasonable prospects of success) is intended to be the same test for summary dismissal as that in s.31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Shammas v Canberra Institute of Technology [2014] FCA 71 at [51] (Foster J). Section 31A of the FCA Act, which commenced on 1 December 2005 (and therefore before the FCR were made), provides that:
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
7.The principles governing the application of s.31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s.31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5)Consistently with this, Reeves J in Cassimatis explained at [46] that:
… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
Rule 26.01(a) of the Federal Court Rules 2011 is relevantly identical to r.13.10(a) of the Rules of this Court.
RELEVANT MIGRATION LEGISLATION
The requirements for a valid review application to the Tribunal are found in s.347 of the Migration Act 1958 (“Act”). At all material times it relevantly provided:
347 Application for review of Part 5-reviewable decisions
(1)An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
… and
(c) be accompanied by the prescribed fee (if any).
At the relevant time reg.4.10 of the Migration Regulations 1994 provided:
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
(a)if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; …
Section 66(1) of the Act provides that the Minister must advise a visa applicant of the outcome of his or her application in the prescribed way. At the material time reg.2.16(3) relevantly provided in that connection:
2.16 Notification of decision on visa application
(1)For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
Refusal to grant visa
(3)The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
At the material time s.494B of the Act relevantly provided:
494B Methods by which Minister gives documents to a person
Coverage of section
(1)For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section; …
…
Transmission by fax, email or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a)fax; or
(b)email; or
(c)other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; …
Section 494C of the Act relevantly provided at the material time:
494C When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, email or other electronic means
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
BACKGROUND FACTS
As already noted, the delegate’s decision was made on 24 March 2017. The applicant was advised of that outcome by an email sent that day to the email address which he had given in his visa application as an address to which communications might be sent by the Minister’s department.
By virtue of the combined operation of ss.494B and 494C, the applicant is taken to have been advised of the refusal of his visa application on 24 March 2017. As 17 April 2017 was the Easter Monday public holiday, the applicant therefore had until 18 April 2017 to lodge his review application with the Tribunal.
The applicant made his review application to the Tribunal on 20 April 2017. On 9 May 2017 the Tribunal wrote to the applicant at his email address raising an issue regarding his review application. Relevantly, that letter said that the review application had been made out of time because it had not been made within 21 days of his receipt of the letter of refusal. The applicant did not reply to that letter and so the Tribunal was empowered under s.359C of the Act to proceed to make a decision on the papers which it did.
The Tribunal’s decision and reasons
The Tribunal considered the matters to which I have made reference and concluded:
6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 24 March 2017. Therefore the prescribed period within which the review application could be made ended on 18 April 2017. As the application for review was not received by the Tribunal until 20 April 2017 it follows that the application for review was not made in accordance with the relevant legislation and the tribunal has no jurisdiction in the matter.
PROCEEDINGS IN THIS COURT
In his application commencing this proceeding the applicant alleged:
1. The Tribunal failed to exercise its jurisdiction:
It was error for the Tribunal to assess the application without allowing applicant to present his arguments.
2.My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.
3.The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.
It is to be noted that the allegations made in the application commencing this proceeding do not engage with the basis of the Tribunal’s decision.
The evidence which the Minister relied on in support of his interlocutory application was, first, an affidavit of Sarah Rebecca Ingram affirmed 27 September 2017. Ms Ingram is an administrative support officer who, at the time she swore her affidavit, was an administrative support officer employed by the Department of Immigration and Border Protection (“Department”). Her evidence was to the effect that documents included in the Court Book, which was exhibit 1 on the present application, demonstrated that the delegate’s letter advising the applicant of the refusal of his visa application had been sent to him by email at the email address identified by him in his visa application and that the email had been sent by the Department’s server to that address at 12 minutes and 52 seconds after 4 pm on 24 March 2017, although it had been completed and sent to the server by its author at seven minutes and 11 seconds after 4 pm on that day.
The Minister also relied on the affidavit of his solicitor, Mr Moss, which was affirmed on 4 July 2018. Mr Moss’ affidavit sets out the background of the present application in a case.
The matters which I have summarised, touching on the applicant’s deemed receipt of the delegate’s letter, I find as facts. I accept the evidence of Ms Ingram and the evidence contained in the Court Book. That evidence satisfies me that the applicant was notified on 24 March 2017 that his visa application had been refused and that, because his application was not made to the Tribunal until 20 April 2017, it was made out of time, the result of which was, as the Tribunal noted, that he had not made a valid application to the Tribunal and it did not have jurisdiction in his matter.
CONCLUSION
In those circumstances, it is plain that the present proceeding has no reasonable prospects of success and so ought to be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 13 September 2018
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