Shi v Minister for Immigration

[2018] FCCA 3424

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3424

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – non-appearance before the Tribunal – whether there was a reasonable exercise of the Tribunal’s power under s 362B of the Act – non-appearance before the Court – whether there is an adequate explanation for the applicant’s failure to appear – whether the Tribunal complied with its statutory obligations in the conduct of the review – no utility in setting aside the orders made on 10 September 2018 – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cls.602.212, 602.213 of sch.2, sch.3

Applicant: QINXIN SHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3231 of 2015

Judgment of: Judge Street

Hearing date: 23 November 2018

Date of Last Submission: 23 November 2018

Delivered at: Sydney

Delivered on: 23 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell
Minter Ellison

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s further costs fixed in the amount of $900.00.

DATE OF ORDER: 22 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3231 of 2015

QINXIN SHI

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 29 October 2015 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant first arrived in Australia on 12 March 2008 on a TU-571 (Student) visa which ceased on 15 March 2010. The applicant is a citizen of China. The applicant then remained unlawfully in Australia until granted a Bridging visa on 3 July 2013. The applicant has not held any further substantive visa. The applicant applied for the Medical Treatment visa on 28 July 2015. On 29 July 2015, the delegate refused to grant the applicant the Medical Treatment visa. The delegate found the applicant did not satisfy the criterion in cl 606.213 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. The applicant applied for review of the decision to the Tribunal on 17 August 2015. By letter dated 28 September 2015, the Tribunal invited the applicant to appear to give evidence and present arguments at the hearing. The applicant notified the Tribunal that he would attend the hearing by returning the response to hearing invitation. The Tribunal also sent the applicant reminder texts on 22 and 28 October 2015 via SMS.

4. The applicant did not appear on the time and date of the hearing. The Tribunal noted the applicant had not contacted the Tribunal about his failure to attend. The Tribunal was satisfied the applicant had been given an opportunity to appear but had failed to do so. In those circumstances, pursuant to s 362B of the Act, the Tribunal decided to proceed to make a decision on the review material.

5. The Tribunal identified when the applicant’s last substantive visa expired and the requirements of cl 606.213 of the Regulations. The Tribunal noted that the applicant has not turned 50 and does not meet any of the requirements of cl 602.212(6) of the Regulations. The Tribunal found the applicant had to meet the criteria under criteria 3001 of the Regulations. The Tribunal identified this required the application to be made within 28 days of the relevant day.

6. The Tribunal found the current application was made over five years later and, accordingly, was not made within 28 days of the relevant day. For these reasons, the Tribunal found the applicant did not satisfy the criterion under cl 602.213 of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were the subject of orders made by the Court fixing the matter for hearing on 10 September 2018. On that occasion, the applicant failed to appear and the matter was dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

2. On 15 November 2018, the applicant filed an application in a case seeking to have the proceedings reinstated. The applicant explained that his email had gone into junk mail. The applicant also asserted from the bar table that he had changed his address. The Minister tendered a bundle of correspondence sent by email to the applicant’s email address and also two letters sent to his residential address, both of which were on the initiating application.

3. At the commencement of this interlocutory hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The applicant sought to rely upon his change of address and the notifications going into junk mail as a satisfactory explanation for his failure to appear. I accept the submissions of the first respondent that it was the applicant’s obligation to check his emails and also to notify the first respondent if he, in fact, changed his address and that the correspondence was sent to the address provided by the applicant the subject of these proceedings. I accept the first respondent’s submission that the applicant’s explanation for his failure to appear is unsatisfactory.

5. The applicant did not advance any submissions from the bar table in support of why he had a reasonable argument that the Tribunal’s decision was wrong.

The grounds

1. The grounds in the application are as follows:

   Orders sought by Applicant.

   1. I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for medical visa onshore.

   2. They did not consider the fact that I had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.

   3. DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

   The Grounds of the Application are:

   1. I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control.

   2. AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my compelling reason beyond my control.

   3. I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

2. The grounds in the application and the applicant’s affidavit filed at the time of commencement of the proceedings erroneously assume that the Tribunal was required to consider the applicant’s circumstances notwithstanding the fact that the applicant did not meet the mandatory criterion. There is no such requirement as alleged by the applicant.

3. The Tribunal did not have power to determine whether the applicant met the criterion on compassionate or discretionary grounds. The applicant’s disagreement with the Tribunal’s decision and the grounds that are purportedly set out in the attachment to the application under ‘Orders Sought by Applicant’ and ‘The Grounds of Application are’ do not identify any reasonable argument of jurisdictional error.

4. I accept the first respondent’s submissions that the Tribunal’s decision is one on its face which supports the Court finding the Tribunal complied with its statutory obligations in the conduct of the review. The decision to proceed to determine the matter where the applicant had been notified of the hearing by the Tribunal and where the applicant had returned a response, and where the applicant had been sent two SMS messages, cannot be said to be legally unreasonable. In these circumstances the Tribunal’s decision to proceed cannot be said to lack an evident and intelligible justification.

5. Nothing has been said by the applicant to identify any utility in the Court setting aside the order made in his absence under r 16.05(2)(a) of the Federal Circuit Court Rules 2001. There is no satisfactory explanation for the applicant’s failure to appear. There would be no utility in setting aside the orders made on 10 September 2018 because there is no reasonable argument brought on error. In these circumstances, the Court is not satisfied that it is necessary in the interests of the administration of justice to set aside the orders made on 10 September 2018. The Court declines to set aside the orders made on 10 September 2018.

6. Accordingly, the application in a case is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 December 2018