SINGH v Minister for Immigration

[2017] FCCA 3143

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3143

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Medical Treatment Visitor (Class UB) (Subclass 602) visa – application without merit – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 360, 362B.

Migration Regulations 1994 (Cth), sch.2, cls. 602.212, 602.213, sch.3, criteria 3001, 3003, 3004, 3005.

Applicant: GURJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 944 of 2016

Judgment of: Judge Hartnett

Hearing date: 29 November 2017

Delivered at: Melbourne

Delivered on: 29 November 2017

REPRESENTATION

The Applicant: In Person

Solicitor for the First Respondent: Mr Grant

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 944 of 2016

GURJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 8 April 2016. The Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Medical Treatment Visitor (Class UB) (Subclass 602) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of application are as follows:-

   “Judicial error has been made to make a decision

   Applicant has not been provided the opportunity to explain the situation”

3. As can be seen from the above grounds, there is a failure to particularise them so as to make them meaningful in any way. 

4. The First Respondent seeks dismissal of the application and that costs follow that event.  The First Respondent contends that the application fails to identify jurisdictional error. 

Background

1. The Applicant is a citizen of India.  On 6 January 2016 he applied to the Department of Immigration and Border Protection (‘the Department’) for the visa whilst onshore.  He appointed a registered migration agent to represent him during the visa application process. 

2. In order to be granted the visa the Applicant had to meet a range of criteria. This included cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The relevant effect of cl.602.213 was that if the Applicant was in Australia, that is, onshore at the time of application; did not hold a substantive visa; and did not satisfy the requirement in cl.602.212(6) by being medically unfit to depart Australia (see cl.602.213(3)(c)) the Applicant was required to satisfy criteria 3001, 3003, 3004 and 3005 in Schedule 3 to the Regulations.

3. Relevantly, criterion 3001 required that the application for the visa must have been validly made within 28 days of the “relevant day”. “Relevant day” was defined in criterion 3001(2) and was, in the circumstances of this matter, the last day when the Applicant held a substantive visa. 

4. On 8 January 2016 a delegate of the First Respondent refused to grant the Applicant the visa on the basis that the Applicant did not satisfy cl.602.213 of Schedule 2 to the Regulations. 

5. On 27 January 2016 the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant appointed a migration agent to represent him and provided a copy of the delegate’s decision with his application for review. 

6. On 1 March 2016 the Tribunal wrote to the Applicant by email sent to his representative inviting him to attend a hearing before it scheduled on 8 April 2016.  The hearing invitation was sent to the email address provided in connection with the review application. The Applicant confirmed before the Court this day that he was aware of the Tribunal hearing but that he was unable to “make it” to the Tribunal hearing on the appointed date. 

7. On 1 and 7 April 2016 the Tribunal sent SMS hearing reminders to the Applicant’s mobile telephone number nominated in the review application. 

8. Neither the Applicant nor his appointed migration agent attended the hearing before the Tribunal on 8 April 2016 and nor did either of them contact the Tribunal. 

The Tribunal Hearing 

1. On 8 April 2016 the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa. 

2. The Tribunal found there was no evidence before it that the Applicant was medically unfit to travel for the purpose of meeting cl.602.212(6) as required by cl.602.213(1). It also found that the Applicant did not hold a substantive visa at the time of the application and that the last substantive visa held by the Applicant was not a subclass 403 or 426 visa as required by cl.602.213(2). Accordingly, the Tribunal proceeded to consider whether the Applicant satisfied criterion 3001 (as required by cl.602.213(5).

3. The Tribunal noted in paragraph 13 of its Statement of Decision and Reasons (‘the Decision Record’) that in order to satisfy criterion 3001 the application for the visa must have been lodged within 28 days of the relevant day with the relevant day as being defined in criterion 3001(2).  The Tribunal found that the last substantive visa held by the Applicant had ceased on 5 November 2010 and that as the visa application was not lodged until 6 January 2016 it was not made within 28 days of the relevant day, being 5 November 2010, and the date on which the Applicant last held a substantive visa. 

4. The Tribunal also noted there was no discretion within the Schedule 3 criteria of Part 602 of Schedule 2 of the Regulations to waive the requirement of criterion 3001. As the Tribunal found that the Applicant did not meet criterion 3001 it was not necessary for it to consider whether the Applicant met criterion 3003, 3004 or 3005.

5. It followed the Tribunal found the Applicant did not meet cl.602.213 as a whole.

6. On 6 May 2016 the Applicant filed this application for judicial review.

7. On 12 October 2016 Registrar Buljan made various procedural orders by consent which included that the Applicant file and serve any amended application including any additional grounds of review with complete particulars of each ground and any written submissions.  The Applicant filed neither an amended application to make his application meaningful, and nor did he file any written submissions. 

Consideration 

1. The Court finds the Tribunal validly exercised its discretion under s.362B of the Act to make a decision on a review without taking any further action to allow or enable the Applicant to appear before it. The Tribunal did invite the Applicant to attend the hearing in compliance with s.360 of the Act and the Applicant is taken to have received the hearing invitation which the Applicant in any event confirmed this day.

2. The Tribunal gave reasons for exercising its discretion to proceed which provided transparent and intelligible justification for proceeding with the review under s.362B of the Act.

3. The decision of the Tribunal involved the correct application of the relevant legislative scheme and the decision was based on the evidence and materials before it.  The decision was one clearly open to the Tribunal and, indeed, the Tribunal could not have made any other decision. 

4. This application being, without merit, is dismissed and costs shall follow that event.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 14 December 2017