Rana v Minister for Immigration

[2018] FCCA 1932

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1932

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application by applicant for a Medical Treatment (Visitor) (Subclass 602) visa refused by a Delegate of the Minister for Immigration – application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from the decision of the Delegate because it was lodged outside the applicable 21 day period for doing so – the Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – Administrative Appeals Tribunal did not commit jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 338, 347, 494B, 494C

Migration Regulations 1994 (Cth)

Cases cited:
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570

Applicant: KAMAL RANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3364 of 2017

Judgment of: Judge Dowdy

Hearing date: 21 June 2018

Delivered at: Sydney

Delivered on: 20 July 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms A. Zinn

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Grant leave to the Applicant to amend his Application filed in this Court by substituting as the date of the decision of the Second Respondent of which he seeks judicial review “6 October 2017” in place of “10 October 2017”.

2. The Application filed in this Court on 2 November 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3364 of 2017

KAMAL RANA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of India aged 32 years, having been born on 1 August 1985.

2. By Application filed in this Court on 2 November 2017 he seeks to quash and impliedly have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 October 2017 in which the Tribunal found that it did not have jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 27 July 2017 refusing to grant to the Applicant a Medical Treatment (Subclass 602) (Visitor) visa (Medical visa) because it had been lodged with the Tribunal after the time prescribed under the Migration Act 1958 (Cth) (the Act).

Background

1. The Applicant lodged his application for the Medical visa on 24 July 2017. In this application he agreed to the Department of the Minister communicating with him by email at his email address of [email protected] (Email address).

2. An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: cl.602.211 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations).

3. In his Medical visa application the Applicant stated that he would be under medical care while in Australia for the period from 4 July 2017 to 4 September 2017. In section 18 of his Medical visa application form, in which he was required to describe the medical treatment in Australia which he had arranged and the estimated cost, he responded verbatim:

   I HAVE BEEN SUFFERING FROM DEPRESSION DUE TO THE CIRCUMSTANCES HAPPENED PREVIOUSLY IN MY LIFE. I AM FEELING VERY DEPRESSED, CONFUSED AND CANT DECIDE WHAT TO DO AND HOW TO DO. SO I HAVE CONSULATED THE DOCTOR TO START MY TREATMENT. ESTIMATED COST ~ OF VISTING GP IS AROUND A$60 A VISIT AND $80 PER VISIT IS THE CHARGES OF PSYCHOLOGIST. THAT I HAVE SAVING FOR THAT TREATMENT

Relevant Grounds for the Grant of a Medical Visa Under Subclass 602

1. The Applicant had to satisfy the primary criterion comprised in cl.602.215, which provided as follows:

   602.215

   (1)The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c)  any other relevant matter.

   (2)However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

   (emphasis added)

2. Subclause 602.212(6) provided as follows:

   Unfit to depart

   (6)  All of the following requirements are met:

   (a)  the applicant is in Australia;

   (b)  the applicant has turned 50;

   (c)the applicant has applied for a permanent visa while in Australia;

   (d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)  the applicant has been refused the visa;

   (f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

Decision of Delegate

1. Self-evidently the Applicant could not meet the requirements of cl.602.212(6): he had not turned 50 years of age and there is no suggestion that he had a written statement from a Medical Officer of the Commonwealth that he was medically unfit to depart Australia due to a deteriorating disease or health condition, and so cl.602.215(1) applied.

2. By her Decision Record dated 27 July 2017 the Delegate refused to grant the Medical visa to the Applicant on the basis that he did not meet cl.602.215 because she believed that the Applicant was attempting to obtain the Medical visa to maintain ongoing residence and remain in Australia and to continue working in Australia and to access services in Australia.

3. In particular, the Delegate had regard to the Applicant’s lengthy migration history and stay in Australia, which indicated that since he had arrived in Australia on 1 October 2008 on a Student visa he had spent 3197 days in Australia and only 21 days offshore and had only once departed Australia on 20 December 2010, re-entering Australia on 11 January 2011. The Delegate was further not satisfied that the Applicant had presented sufficiently compelling or exceptional circumstances to warrant departure from normal policy and legal requirements of the genuine visit criterion for Medical Treatment visas and accordingly she refused the grant of the Medical visa to the Applicant.

4. The evidence before the Court establishes that the Decision Record of the Delegate and the Notification of Refusal letter, both dated 27 July 2017, were sent by email to the Applicant at his Email address. Pursuant to s.494C(5) of the Act the Applicant was taken to have received the adverse decision of the Delegate at the end of 27 July 2017.

Decision of Tribunal

1. The Applicant lodged his application for merits review of the Delegate’s decision with the Tribunal on 29 August 2017. In his application form he gave a different email address for the Tribunal to send correspondence to him, being [email protected] (second Email address).

2. By letter dated 18 September 2017 sent to the Applicant at his second Email address, the Tribunal invited the Applicant to comment on its preliminary view that his application for review may not be valid because it was not received in the prescribed time frame. The invitation noted that the Delegate's decision was emailed to the Applicant on 27 July 2017 and the last day for lodging the application for review was 17 August 2017.

3. On 27 September 2017, the Applicant contacted the Tribunal enquiring about his application for review. When the Applicant was informed that the invitation to comment had been sent by the Tribunal to his second Email address he acknowledged that he had provided an incorrect email address to the Tribunal.

4. On 27 September 2017, the Tribunal resent the invitation to comment dated 18 September 2017 to the Email address and reminded him that he had until 3 October 2017 to respond. The Applicant did not respond to that invitation.

5. By its Decision Record dated 6 October 2017 the Tribunal found that it had no jurisdiction to review the Delegate’s decision because the application for review had not been made in accordance with the legislation.

6. The Tribunal noted that pursuant to s.347(1)(b) of the Act and reg.4.10 of the Regulations the application for review had to be given to the Tribunal within 21 days after notification of the Delegate’s decision had been given to the Applicant, which had occurred on 27 July 2017. Accordingly, the last day for the Applicant to lodge his application for review was 17 August 2017. The Applicant’s application was not received or lodged until 29 August 2017 and was out of time.

7. Accordingly, the Tribunal found at [6] of its Decision Record as follows:

   [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 27 July 2017. Therefore the prescribed period within which the review application could be made ended on 17 August 2017. As the application for review was not received by the Tribunal until 29 August 2017 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

Grounds of Attack on Tribunal decision in this Court

1. In his Application filed in this Court the Applicant relied on two grounds, being verbatim:

   1.Department of Immigration and Border Protection (DIBP) had refused my Medical Treatment Visa Application. when I was treatment with doctor and specialist. But the DIBP didn’t consider it and on the basis of assumptions DIBP refused my Visa application.

   2.Then I lodged appeal against my Visa Refusal to Administrative Appeal Tribunal. Administrative Appeal Tribunal make the Review Application invalid. I believe DIBP and MRT-RRT made Judicial Error which needs to be rectified.

Consideration

Ground 1

1. This Ground attacks the decision of the Delegate which is a primary decision and which this Court has no jurisdiction to review. I cannot regard it even as being directed at the decision of the Tribunal because the Tribunal did not consider the application for a review of the Delegate’s decision on the merits but found, rather, that it had no jurisdiction.

2. Accordingly, this Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. Insofar as this Ground attacks the decision of the Tribunal that it lacked jurisdiction, I consider that it fails.

2. The Tribunal's finding that it did not have jurisdiction was correct because:

   a)the Delegate's decision was a “Part 5-reviewable decision” under s.338(9) of the Act;

   b)the Delegate’s Notification of Refusal letter complied with s.66(1) of the Act as it was sent to the Applicant in accordance with s.494B(5) and reg.2.16(3) of the Regulations. In particular, the notification was valid as it:

   i)specified the criterion that the Applicant did not satisfy as required by s.66(2)(a);

   ii)gave written reasons why the criterion was not satisfied in accordance with s.66(2)(c); and

   iii)stated that the Delegate’s decision could be reviewed; the time in which the application for review could be made; who could apply for the review; and where the application for review could be made (in accordance with ss.66(2)(d)(i)-(iv));

   c)pursuant to s.494C(5) of the Act, the Applicant was deemed to have received notification at the end of the day on which it was transmitted (namely, on 27 July 2017) and the deemed receipt of the notification of the Delegate's decision is not rebuttable;

   d)the Tribunal correctly found that the period in which the Applicant could validly lodge an application for review to the Tribunal was within 21 days after the Applicant was notified of the decision in accordance with s.347(1)(b) of the Act and reg.4.10 of the Regulations, being 17 August 2017;

   e)the Applicant did not lodge his application for review until after the period had expired, namely on 29 August 2017;

   f)there is no provision in the Act that allows the Tribunal, or a Court, to override, or extend, the time limit set by s.347 or any jurisdiction to entertain an application that was not made within time. As Charlesworth J recently stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] as follows:

   [29]The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.

   g)the filing of an application for review with the Tribunal within that time limit has been held to be a prerequisite to the existence of the Tribunal's jurisdiction: Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at 419 [49] – [50] per Dowsett, Finkelstein and Heerey JJ; VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at 578 [32] – [33] per Gray, Whitlam and Mansfield JJ.

Conclusion

1. Both Grounds asserted by the Applicant fail to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court is to be dismissed.

A Final Matter – Adjournment Application

1. I record that at the hearing the Applicant sought an adjournment so that he could obtain the services of a lawyer whom he said he could now afford to employ.

2. Ms Zinn, who appeared for the Minister, opposed any adjournment.

3. I refused any adjournment. The Applicant had received ample time to obtain the services of a lawyer. He had appeared in Court in person on the first return date of his Application on 9 February 2018 when orders were made to get the matter ready for the final hearing, which was set down for 21 June 2018.

4. No notice had been given of any proposed adjournment application. The efficient conduct of the business of this Court could not be maintained if applicants could, as a matter of course, obtain adjournments of final hearings to allow them to obtain the services of a lawyer, when ample time had already been given to obtain legal representation.  Further, the Grounds relied on by the Applicant in my view lacked sufficient merit to warrant an adjournment being granted, and accordingly I was of the view that it was not in the interests of justice to grant any adjournment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  23 July 2018