Rahman BY His Litigation Guardian v Minister for Home Affairs

[2018] FCCA 3174

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN BY HIS LITIGATION GUARDIAN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3174

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal identified the relevant law – whether the Tribunal assessed the relevant criteria – whether the Tribunal complied with the requirements of procedural fairness – no arguable case of jurisdictional error made out – 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.359A, 476

Migration Regulations 1994 (Cth), cl. 602.212, 602.213 of Schedule 2, Schedule 3

Applicant:	ALIF RAHMAN
Litigation Guardian:	EMDAD HOSSAIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 860 of 2018

Judgment of: Judge Street

Hearing date: 2 November 2018

Date of Last Submission: 2 November 2018

Delivered at: Sydney

Delivered on: 2 November 2018

REPRESENTATION

The Applicant’s litigation guardian appeared in person.

Solicitors for the Respondents: Mr D McLaren
Minter Ellison

ORDERS

1. This proceeding will be heard concurrently with proceedings SYG859/2018 and SYG862/2018.

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

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

DATE OF ORDER: 2 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 860 of 2018

ALIF RAHMAN BY HIS LITIGATION GUARDIAN EMDAD HOSSAIN

Applicant

And

MINISTER FOR HOME AFFAIRS

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 of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 March 2018 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a minor and his father was appointed as litigation guardian for the purpose of these proceedings. The applicant’s last substantive visa ceased on 10 September 2013. On 11 July 2017, the delegate found the applicant failed to meet the criteria for the grant of the Medical Treatment visa.

3. The applicant applied for review on 31 July 2017. By letter dated 30 January 2018, the applicant was invited to attend a hearing on 7 March 2018. The applicant’s father appeared at the hearing to give evidence and present arguments on his behalf.

4. The Tribunal found the applicant did not meet the criteria under cl 601.212(6) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found that in light of the substantive visa expiring on 10 September 2013, the applicant had not made the application within the 28 day relevant period required under criterion 3001 of the Regulations, and that the applicant did not meet the criteria under cl 602.213 of the Regulations. Accordingly, the Tribunal affirmed the decision under review.

5. These proceedings were commenced on 28 March 2018. On 19 April 2018, a Registrar of the Court made orders giving the applicant the opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

6. The proceedings were fixed today for a show-cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At the commencement of the hearing the Court explained to the litigation guardian the nature of the hearing and the litigation guardian confirmed he understood the explanation as given by the Court.

7. The litigation guardian, on behalf of the applicant, asked the Court to exercise its discretionary powers to permit the applicant to remain in Australia for his welfare and benefit. The Court has no power to decide the matter on compassionate or discretionary grounds. The Court has no power to permit the grant of relief on grounds of leniency or to review the merits. Nothing said by the litigation guardian identifies any arguable case of jurisdictional error by the Tribunal.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to put 'information' under Section 359 A of the Migration Act.

   Particulars

   The Tribunal noted in its decision that as per the Departmental records that the applicant came to Australia on a visitor visa dated 10 December 2013. This is an 'information' covered under Section 359A of the Migration Act. By failing to put that 1information' to the applicant required under the Act, the Tribunal committed a legal error.

   2. The Tribunal failed to ask relevant questions and failed to assess relevant criteria required to grant the visa.

   Particulars

   Clause 602.212 (1) provides that clause 602.212 would be satisfied if any of the requirement noted in clause 602.212 (2) -(8) satisfied. Clause 602.212 (8) further states that the decision maker should consider compelling reasons when assessing to grant the visa. In the applicant's case the Tribunal failed to ask relevant questions on whether there are any compelling reasons for the grant of visa or failed to consider the compelling reasons in the case.

2. The grounds in the application are misconceived. It is apparent that there was no information enlivening any obligation under s 359A of the Act. The information in relation to the cessation of the visa was identified in the delegate’s decision, which was provided in the application for review.

3. Further, this is not a case where there was power for the Tribunal to determine the matter on compassionate or compelling reasons. Accordingly, grounds 1 and 2 have no substance and the application does not disclose any arguable case of jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

Conclusion

1. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018