SINGH v Minister for Immigration

[2016] FCCA 276

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 276

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Medical Treatment (Visitor) (Class UB) visa – show cause – applicant did not possess a valid visa at the time of application – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 cl.602.211(5), 602.213, criteria 3001

Applicant: SANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3085 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3085 of 2015

SANDEEP SINGH

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) with respect of a decision of the Tribunal made on 14 October 2015 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. The applicant applied for the medical treatment visa on 10 June 2015. The applicant’s earlier student visa TU 572 ceased on 15 March 2011.

2. One of the requirements for the medical treatment visa is identified under cl.602.211(5) requiring that the criteria relevant under criterion 3001 must be met. Criterion 3001(1) requires that the application is made within 28 days after the relevant day and the relevant day in that regard is the holding by the applicant of a visa that has not ceased. On 17 December 2015 a Registrar of the Court fixed the matter for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001.  The applicant was given an opportunity to file an amended application, 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 show cause hearing under r.44.12 of the Federal Circuit Rules and the applicant confirmed that he understood that explanation.  The grounds of the application are as follows:

   1. The Administrative Appeals Tribunal refused my application for medical treatment visa simply as I do not meet the Criteria of lodging my application within 28 days.

   2. The Tribunal made an error of law by not taking into consideration my compelling and compassionate circumstances and denied me the opportunity to receive medical treatment because of Schedule 3.

   3. I ask the Honourable Court to reconsider the application because Schedule 3 should be waived if there are compelling and exceptional circumstances and my circumstances were not considered by the Tribunal.

4. The grounds fail to identify any arguable question of jurisdictional error. The decision of the Tribunal that the application did not meet the criteria under cl.602.213 was correct. There is no discretionary ground to take into account compelling or compassionate circumstances to waive the criteria in respect of that visa. In the course of the hearing the applicant was asked whether he had anything he wished to say in answer to the first respondent’s submissions or in support of his application and he said that he was very sick and not in a condition to participate further. The applicant confirmed that he had not earlier raised this with the first respondent and he said he had a certificate on which he wished to rely.

5. That medical certificate, dated 2 February 2016, refers to the applicant being unfit for attending work or any activities due to his mental health condition from 2 February 2016 to 22 March 2016 inclusive.  The provision of the certificate on 2 February 2016 does not explain why the applicant had not earlier conveyed the content of the medical certificate to the first respondent.  The first respondent opposed the adjournment on the grounds that the application failed to disclose any arguable jurisdictional error and that the Tribunal was clearly correct and that, accordingly, an adjournment would be of no utility.  I accept the first respondent’s submission.  The applicant was, again, given the opportunity to put any further submissions and said he had nothing to say.

6. After the first respondent’s solicitor summarised the grounds upon which the application failed to disclose any arguable ground under r.44.12 and explained why, in those circumstances, an adjournment should not be granted, the applicant was, again, given the opportunity to put further submissions and the applicant conveyed that he could not say anything. The Court notes in relation to the application for an adjournment that the applicant was able to confirm his understanding of the explanation given by the Court in relation to the r.44.12, show cause hearing and the Court observed the applicant’s interaction with the interpreter.

7. I am, accordingly, satisfied that the applicant was able, if he sought to do so, to participate meaningfully in the hearing. I am satisfied that an adjournment in the present case would only unnecessarily add to the unrecoverable costs and utilise limited Court time. I am satisfied that an adjournment would be of no utility in the circumstances of the present case. I am satisfied that the application failed to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules. The application is dismissed under r.44.12 of the Federal Circuit Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 February 2016