Saeed v Minister for Immigration

[2018] FCCA 2556

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAEED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2556

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal breached s 359A of the Migration Act Act – 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 Sch 2, Sch 3

Applicant: IRSHAD HAIDER SAEED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2939 of 2017

Judgment of: Judge Street

Hearing date: 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Sydney

Delivered on: 10 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder
MinterEllison

ORDERS

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2939 of 2017

IRSHAD HAIDER SAEED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 31 August 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa

2. The applicant’s last substantive visa expired on 24 September 2015. The applicant applied for the current visa on 23 May 2017.  On 24 May 2017, the delegate found the applicant failed to meet the criteria for the grant of the visa.

3. The applicant applied for review and appeared before the Tribunal on 31 August 2017 to give evidence and present arguments. The Tribunal identified that the issue was whether the applicant met the criteria under cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal discussed the requirements of that criteria with the applicant during the hearing. The Tribunal noted the applicant agreed that his last substantive visa ceased on 24 September 2015, and that his present application was not made until 23 May 2017 which was recorded in the delegate’s decision.

4. The Tribunal found the applicant did not meet criteria under cl 602.212(6), did not hold a substantive temporary visa at the time of the application and then turned to consider whether the applicant met criterion 3001 of Schedule 3 to the Regulations. The Tribunal found the application was not made within the 28 days of the relevant day and found the applicant failed to meet the criteria under cl 602.213 of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 21 September 2017. On 23 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. 

2. On 20 August 2018, this Court fixed the matter for hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the FCC Rules”) and gave the applicant a further opportunity to file an amended application and affidavit evidence. No such documents were filed. 

3. When invited to do so, the applicant indicated he wished to rely upon the grounds in his application and did not seek to put oral submissions. The Court had explained to the applicant the nature of the hearing under r 44.12 of the FCC Rules at the commencement of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the court. 

4. The grounds in the originating application are as follows:

   1. The Tribunal failed to consider the integer of the applicant's claim and failed to engage in active intellectual process to consider all of the applicant's claim until the notification sent to the applicant.

   Particulars

   The applicant sent two submissions to the Tribunal on 01 September 2017 at 8.12 a.m. noting the following:

   'Furthermore, due to my Shia background and my activities and my association with the TNFJ and my family's profile I fear either I would be prevented or deprived medical treatment by the authorities as a result of Sunni extremists influence or would face practical difficulties in seeking adequate treatment in Pakistan.

   Further due to the issues I have with the Federal Agencies due to my passport issues since I suspect that federal agencies had a hand in using my details to send someone in my name to Australia, I genuinely believe I would be arrested at the airport to cover their issues and would be imprisoned. If I am imprisoned in Pakistan I would not be able to get adequate medical facilities and on the other hand my health condition will further worsen due to degrading inhuman cruel conditions prevailing in the prison.'

   The applicant provided relevant and sufficient information and claims on the issue to provide the compelling reasons to satisfy Schedule 3 criteria of the Regulations. The Tribunal sent its decision at 8.48 a.m on 01 September 2017. The above infom1ation and claims and submissions of the applicant were before the Tribunal before it sent its decision to the applicant. However, the Tribunal failed to consider the applicant’s claims and information on compelling reasons.

   2. The Tribunal acted unreasonably by failing to defer its decision until the applicant had provided a relevant document as requested by the Tribunal.

   Particulars

   The applicant in his submission dated 01 September 2017 at 8.25 a.m. requested the Tribunal to give some time until 12 September 2017 to provide further medical report in support of the applicant's application.

   The Tribunal failed to wait till that time or failed to advise the applicant that it would not grant such extension of time and refused the application. As a result of that, the Tribunal acted unreasonably by failing to defer its decision.

   3. The Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.359A of the M;gration Act 1958 ("the Act") to get information or otherwise.

   Particulars

   The Tribunal noted that the applicant's student visa expired on 24 September 2015. This is an information which should have been put under Section 359 A of the Migration Act 1958.

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the relevant law that had to be applied and the mandatory criteria that the applicant had to meet. The applicant failed to meet the mandatory criteria of the visa. The applicant sent post hearing written submissions to the Tribunal at 10:25pm on 31 August 2017 which outlined compelling reasons to waive the Schedule 3 criteria. The applicant’s assertion that there was an integer of his claims in respect of which the Tribunal failed to consider, or that there was some failure to have an active an intellectual engagement with the applicant’s claims, does not identify any arguable case of jurisdictional error in the Tribunal’s reasons.

2. The Tribunal had no jurisdiction to waive the Schedule 3 criteria. Secondly, the Tribunal became functus officio when it made its written statement at 3:37pm on 31 August 2017 and therefore could not consider the applicant’s written submissions.

3. On the face of the material before the Court, the Tribunal correctly identified the relevant criteria and the adverse finding by the Tribunal was open to the Tribunal, taking into account the applicant’s evidence confirming when his last substantive visa expired, and the timing of the application made for this visa. Nothing in ground 1 identifies any arguable case of jurisdictional error. 

Ground 2

1. In relation to ground 2, the Tribunal identified the mandatory criteria that was required to be met. The Tribunal noted that the applicant did not contest the fact that he did not meet that criteria. To the extent that the applicant seeks to rely upon a post hearing written submission sent to the Tribunal, that was sent after the tribunal made its decision and identifies no basis upon which the Tribunal could be said to be in error in failing to grant an adjournment that was never requested on the face on the material by the applicant of the Tribunal. 

2. Further, in circumstances where the applicant clearly failed to meet the criteria that had to be mandatorily applied by the Tribunal, the refusal to adjourn the proceedings is not one that could be said to lack an evident and intelligible justification and legally unreasonable.  No arguable case of jurisdictional error as disclosed by ground 2. 

Ground 3

1. In relation to ground 3, the applicant provided to the Tribunal at the time of the application for review, the delegate’s decision which referred to the expiry of the applicant’s student visa. Further, the applicant confirmed that evidence during the hearing before the Tribunal as outlined in the Tribunal’s reasons. Accordingly, the information referred to in the particulars to ground 3 is information falling within s 359A(4)(b) of the Act and does not enliven the obligation under s 359A of the Act.  Accordingly, no arguable jurisdictional error is disclosed by ground 3.

Conclusion

1. As the application fails to identify any arguable case of jurisdictional error, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the FCCRules. Accordingly, the application is dismissed under r 44.12 of the FCC Rules. 

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

Date: 19 October 2018