SINGH v Minister for Immigration

[2017] FCCA 2947

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2947

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (class UB) visa – whether the Tribunal misinformed itself as to the applicant’s evidence – whether the Tribunal had jurisdiction to decide the matter – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Schedule 2, cls 606.212, 602.213, Schedule 3, criterion 3001

Applicant: LAKHVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2163 of 2017

Judgment of: Judge Street

Hearing date: 29 November 2017

Date of Last Submission: 29 November 2017

Delivered at: Sydney

Delivered on: 29 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr C Robertson
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2163 of 2017

LAKHVINDER SINGH

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) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 June 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (class UB) visa. The applicant is a citizen of India and arrived in Australia on 4 July 2009 as the holder of a visitor (TR-676) visa. That visa expired on 4 October 2009.

2. On 16 June 2016 a delegate found the applicant failed to meet the criteria for the grant of the visa. That finding was inevitable, given that the applicant did not hold a substantive visa since 2009.

The first Tribunal’s decision

1. The applicant applied for review and an earlier differently constituted Tribunal found it did not have jurisdiction because the applicant had not paid the requisite fee in support of the documents that were lodged.

2. By consent orders that were apparently sent up to this Court on the basis of a jurisdictional error in respect of holding that the earlier Tribunal had no jurisdiction, the matter was remitted to the Tribunal. It is not apparent, that any attention was given to whether there was any substantive injustice as a result of the error. On the face of these proceedings the applicant could not possibly have succeeded in the application for the grant of the visa.

The current Tribunal’s decision

1. Nonetheless, the matter was remitted to a differently constituted Tribunal and the applicant was invited to attend a hearing on 17 May 2017 to be heard on 14 June 2017. The applicant appeared on that date before the Tribunal to give evidence and present arguments.

2. The Tribunal in its decision on 14 June 2017 identified the background to the review and identified the criteria in relation to cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found the applicant does not meet cl 602.212(6), because the applicant did not hold a substantive temporary visa at the time of the application. The last substantive visa was held in 2009.

3. The Tribunal accordingly turned to criterion 3001 of Schedule 3 to the Regulations and found the application was not lodged within the required 28 days of the last substantive visa, which was held on 4 October 2009. It was in those circumstances the Tribunal found the applicant failed to meet the criteria under cl 602.213 and affirmed the decision under review.

Proceedings before this Court

1. The applicant applied for review in this Court on 11 July 2017. On 31 July 2017, a Registrar of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the application are as follows:

   1 The Applicant met the key elements of the Subclass 602 (Medical Treatment) visa but the Tribunal member did not consider and therefore committed factual and legal error.

   2. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.

   3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

Nature of the hearing

1. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

2. The Court explained it would have identified the evidence and then hear submissions from the applicant. The Court explained, provided the applicant put submissions, it would then call on the solicitor for the first respondent to put submissions and then give the applicant an opportunity to put submissions in reply.

3. The applicant confirmed from the bar table that the first respondent’s submissions had been read to him. The Court explained to the applicant that the submissions explained why the first respondent said that the grounds in the application failed to make out any relevant legal error. The Court explained the submissions also advanced why the first respondent submits that the Tribunal’s decision was not unlawful or unfair.

4. From the bar table, the applicant put no submissions. The Court confirmed with the applicant the Court would not call on the solicitor for the first respondent if the applicant did not put submissions, and the applicant maintained the position of not advancing any submissions.

5. The Court then raised that the application appeared to be vexatious and raised with the first respondent why it was that consent orders had been provided for setting aside the earlier Tribunal’s decision when in the circumstances of the present case there was no practical injustice in not setting aside the decision. The applicant could not possibly meet the criteria for the grant of the visa in the circumstances. It is unfortunate, that no focus was brought to bear on that consideration in relation to whether there was a real consequence of an alleged error in the earlier Tribunal decision holding that it did not have jurisdiction. The consequence has been a further waste of this Court’s time and of the Tribunal’s time in respect of an application that was patently vexatious. Further, an application of this kind should ordinarily be the subject of proceedings either under r 44.12 of the Federal Circuit Court Rules 2001 for show cause or for summary dismissal under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth)

Consideration

1. From the bar table the applicant indicated that he had been undergoing medical treatment for some time. The undergoing of medical treatment does not identify any basis upon which there could be said to be any jurisdictional error in the circumstances of present case.

Ground 1

1. In relation to Ground 1, the Tribunal correctly identified the relevant criteria and, on the material before the Court, the Tribunal complied with its statutory obligations and complied with the requirements of procedural fairness in the conduct of review. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, the applicant misunderstands the criteria that the Tribunal was required to apply. The mandatory criteria was one which the applicant could not possibly meet, given the last substantive visa expired in October 2009. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to Ground 3, the present case is one where it does not appear that there was any dispute as to the time of expiry of the last substantive visa. There is no basis for the proposition that there was some issue relating to reasonable satisfaction that was not arrived at in accordance with the requirements of the Act on the evidence before the Tribunal. The fact that the applicant’s last substantive visa expired in October 2009 meant the applicant could not meet the mandatory criteria for the grant of the visa in the present case. No jurisdictional error as alleged in Ground 3 is made out.

Conclusion

1. As the application failed to make out any jurisdictional error, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  24 January 2018