Patel v Minister for Immigration

[2017] FCCA 2344

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2344

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa – Tribunal complied with its statutory obligations in the conduct of the review – Tribunal complied with the requirements of procedural fairness no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.602.213 of Schs.2, 3.

Applicant: MUKESHKUMAR AMBALAL PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1021 of 2017

Judgment of: Judge Street

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Sydney

Delivered on: 26 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1021 of 2017

MUKESHKUMAR AMBALAL PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 March 2017, affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a citizen of India and applied for the visa on 11 July 2016. On 19 July 2016, the delegate refused the grant of a visa and found the applicant failed to meet the criteria under cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). 

3. The applicant applied for review and the applicant appeared before the Tribunal on 10 March 2017 to give evidence and present arguments.  The Tribunal identified the requirements of cl.602.213 of the Regulations and in particular, Schedule 3 criteria 3001.

4. The Tribunal identified that the applicant’s last substantive visa expired on 28 December 2012 and found that 28 December 2012 was the relevant day. The Tribunal found that as the visa application was not made within the 28 day requirement of criterion 3001, the applicant failed to meet the criteria under cl.602.213 of the Regulations and the Tribunal affirmed the decision under review.

Before this Court

1. On 18 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The grounds in the application are as follows:

   1. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction"” was not arrived in accordance with the requirements of the Migration Act.

   2. 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.

3. At the commencement of the hearing, the Court explained to the applicant that this was a concurrent hearing with the application of the applicant’s wife, to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary, this mean the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor of the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court. 

6. From the bar table, the applicant identified that he had a compensation case ongoing and wanted to hand up documents relating to the compensation case. Documents relating to the compensation case are clearly not relevant to whether or not the applicant can make out a case of relevant jurisdictional error by the Tribunal and, accordingly, the Court refused to receive the documents relating to the applicant’s compensation case. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the relevant law and given the date of the last substantive visa held by the applicant, was correct in its application of the relevant law to the facts found.  The proposition that there is no jurisdiction for the Tribunal to make its decision is without substance. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and complied with the requirements of procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, no evidence has been identified that the Tribunal misunderstood and on the face of the material, the adverse findings by the Tribunal were open and not the subject of any misunderstanding of the applicant’s evidence. No jurisdictional error is made out by ground 2.

2. This is another application for a medical visa that had no prospect of success at the outset. It is difficult to understand why the applicant was granted a bridging visa in circumstances where the application for a medical visa was on its face, doomed to failure and vexatious. Significant time has been spent by the delegate, the Tribunal and the Court in respect of an application that could not possibly succeed.

3. The last substantive visa was held by the applicant in 2012, and the applicant could not possibly meet the criteria required for the grant of a medical visa. It is difficult to understand why the Department would have issued a bridging visa to the applicant in these circumstances which effectively permits the pursuit of an application for a visa that is doomed to fail.

4. The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 October 2017