Rahman v Minister for Home Affairs

[2018] FCCA 3177

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3177

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal failed to assess the relevant criteria – whether the Tribunal complied with its statutory obligations – 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

Applicant: SALMA RAHMAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 862 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 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 SYG860/2018.

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

3. The applicant 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 862 of 2018

SALMA RAHMAN

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 applied for the Medical Treatment visa on 30 June 2017. The applicant’s last substantive visa expired on 10 September 2013. On 11 July 2017, the delegate refused to grant the applicant the Medical Treatment visa.

3. The applicant applied for review on 31 July 2017. By letter dated 30 January 2018, the Tribunal invited the applicant to attend a hearing. The applicant appeared before the Tribunal to give evidence and present arguments on 7 March 2018.

4. The Tribunal found the applicant failed to meet the criteria under cl 602.212 (6) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found that the last substantive visa held by the applicant expired on 10 September 2013 and accordingly, that the applicant had not made the application within 28 days of the relevant day. The Tribunal found the applicant failed to satisfy the criteria under cl 602.213 of the Regulations. Accordingly, the Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 28 March 2018. On 19 April 2018, 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. On 21 August 2018, this Court made orders fixing the matter 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 applicant the nature of the show cause hearing and the applicant confirmed she understood the nature of the hearing as explained by the Court.

3. The applicant raised with the Court that she had headaches and high blood pressure and did not want to go back to Bangladesh.

4. The applicant had also had her husband address the Court and identify they had a young son who they wish to have remain in Australia and asked the Court, on compassionate grounds, to grant relief. This Court has no power to grant relief on compassionate grounds. It has no power to grant relief on discretionary grounds. The Court just cannot do so.

5. Whilst I understand what the applicant has submitted from the bar table, it, in substance, invites merits review. This Court does not have power to review the merits. The Court’s powers are confined to considering whether the Tribunal complied with its statutory obligations. The Court does not have power to grant relief on grounds of empathising with the applicant, or because of the desire of the applicant to stay in Australia for the benefit of her son, or because of concerns about returning home.

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.

Ground 1

1. Ground 1 is misconceived, and insofar as this ground is to be understood to refer to the date upon which the substantive visa ceased operation, that was contained in the delegate’s decision that was provided to the Tribunal. Accordingly, that is not information of a kind that enlivens any obligation under s 359A of the act. No arguable case of juridical error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal had to be satisfied of mandatory criteria before it could grant the relevant visa. It was not the case that the Tribunal could grant the visa on compassionate or compelling grounds. It had no power to do so. Accordingly, there was no requirement for the Tribunal to explore with the applicant, via questions, issues concerning compelling reasons in circumstances where the Tribunal found the applicant failed to meet the mandatory criteria.

2. Grounds 1 and 2 of the application failed to identify any arguable case of jurisdictional error.

Conclusion

1. Nothing said by the applicant from the bar table or in the applicant’s application identifies any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules.

2. Accordingly, the proceedings are dismissed under r 44.12 of the Federal Circuit Court Rules.

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

Date: 6 December 2018