Sandhu v Minister for Immigration

[2018] FCCA 2554

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2554

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal failed to comply with s 424A of the Act – no jurisdictional error made out – application dismissed under r 44.12 of the Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12

Migration Act 1958 (Cth), ss.359A, 360, 424A, 476

Migration Regulations 1994 (Cth), cl.602.213

Applicant: SWARN SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 214 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 S Vailliappan
DLA Piper

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 $3,062.00.

DATE OF ORDER: 10 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 214 of 2017

SWARN SINGH SANDHU

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 20 December 2016 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 13 September 2009, having arrived in Australia on 13 June 2009 on a three-month Tourist visa. The applicant applied for the Medical visa on 27 July 2016 and on 8 August 2016, the delegate refused to grant the applicant a Medical visa finding that the applicant failed to meet the criteria for the grant of the same.

3. The applicant applied for a review on 24 August 2016. The applicant appeared before the Tribunal on 20 December 2016 to give evidence and present arguments. The applicant gave evidence as to the expiry of his last substantive visa and the applicant agreed that his last substantive visa expired more than 28 days prior to the visa application.

4. The Tribunal identified the criteria was whether the applicant met cl 602.213 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal identified the need to meet the Schedule 3 criterion and found the visa application was not made within 28 days of the relevant day and that the applicant failed to meet the criteria under cl 602.213 of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 23 January 2017. On 4 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. On 20 August 2018, this Court made orders fixing the matter for hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). The Court also gave a further opportunity to the applicant to file any affidavit evidence and submissions. No such documents were filed.

3. At the commencement of the hearing the Court explained to the applicant the nature of the hearing under r 44.12 of the Rules and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table the applicant identified that he had mental problems and was taking medication and was concerned about his children and the outcome of his visa. This Court does not have power to review the merits of the application. This Court cannot make fresh findings of fact. This Court cannot decide the matter on compassionate or discretionary grounds. The applicant’s submissions from the bar table were in substance an invitation to this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

The grounds

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

   1. The Tribunal constructively failed to exercise its jurisdiction. The Tribunal failed to consider my mental health issue adequately.

   2. The Second Respondent fell into jurisdiction error in that the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal raised with the applicant the real issues in relation to the mandatory criteria that the applicant had to meet and the applicant’s mental health issue was not a matter that overcame the mandatory criteria. On the face of the material before the Court, the Tribunal complied with its statutory obligations. On the face of the material before the Court, the applicant had a real and meaningful hearing. The applicant conceded that he did not hold a substantive visa within 28 days of the relevant day. No arguable case of jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, no conduct has been identified to support an allegation of bias. The adverse decision of the Tribunal is not itself conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, there is nothing to suggest that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits.

2. On face of the material before the Court, there is nothing to identify any information enlivening an obligation under s 424A of the Act. Insofar as it concerns the expiry of the last substantive visa, that was a matter identified in the delegate’s decision and it is apparent was confirmed to the Tribunal by the applicant and, accordingly, would fall within s 359A(4)(b) of the Act. No other information has been identified to support any obligation being enlivened under s 424A of the Act. On the face of the material before the Court, the Tribunal complied with requirements under s 360 of the Act and no arguable case of jurisdictional error is disclosed by ground 2.

Conclusion

1. I am satisfied the application failed to disclose any arguable case of jurisdictional error. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018