SZSWY v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 567
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZSWY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 567
File number(s): SYG 1707 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 30 June 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protections visa – whether Tribunal failed to consider several vital integers of claims – whether Tribunal failed to consider relevant evidence – whether Tribunal denied procedural fairness – whether Tribunal failed to perform required duties – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 48
Migration Regulations 1994 (Cth)
Cases cited: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
Commissioner of Taxation v Glennan (1990) 90 FCR 538
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submission/s: 14 June 2023 Date of hearing: 14 June 2023 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the Respondents: Mr Pasas, Clayton Utz ORDERS
SYG 1707 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZSWY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
30 june 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Egypt. The applicant arrived in Australia on 9 November 2009 as the holder of a Student (Subclass 572) visa (“Student visa”). Since this initial visa, the applicant has applied for numerous different visas, including a further Student visa, a Protection visa, a Partner visa and now a Medical Treatment (subclass 602) visa (“Medical Treatment visa”).
The applicant applied for his Medical Treatment visa on 30 April 2021. On 19 May 2021, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Medical Treatment visa.
The applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”) on 25 May 2021. On 26 October 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant his Medical Treatment visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below the application is dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 1 to 8 of the Tribunal’s decision record outline the background of the applicant’s Medical Treatment visa application. Paragraphs 9 to 18 summarise the applicant’s history in Australia, including his various visa applications. The Tribunal noted that the applicant has remained in Australia since 16 March 2010 without a substantive visa and has remained within the country as an unlawful non-citizen for an extended period of time.
Paragraphs 19 and 20 provide the legislative requirements relevant to the Medical Treatment visa. Relevantly, the Tribunal highlights that the purpose of the visa is for applicants to remain in the country temporarily for the purpose of receiving medical treatment.
At paragraph 22, the Tribunal states that the evidence before it indicated that the applicant was in Australia at the time the visa application was filed and that he has remained in Australia since then. As such, the Tribunal found that the applicant met cl 602.212(6)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Clause 602.215 of Schedule 2 to the Regulations require that the applicant genuinely intend to stay temporarily in Australia for the purpose to which the visa was granted. There is an exception to this criteria in cl 602.212(6), however the Tribunal found this was not applicable as the applicant was under the age of 50 years old as required by the exception.
At paragraph 27, the Tribunal states that for the purpose of determining whether the applicant genuinely intends to stay temporarily in Australia it had to have regard to whether the applicant had complied with his visa conditions. As the applicant had not held a substantive visa since 16 March 2010, the Tribunal was not satisfied that the applicant had complied substantially with the conditions of his last substantive visa, or any subsequent bridging visa. At paragraph 31, the Tribunal states that the applicant’s adverse migration history strongly suggests that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing basis or permanently.
The Tribunal noted that the Medical Treatment visa application indicated that the applicant required the visa for the purpose of receiving treatment for a period of six months from the date 19 March 2021. As the applicant did not attend the Tribunal hearing, the Tribunal was unable to explore the applicant’s reasons for not departing Australia or his ongoing medical needs. As such, it found that the applicant no longer needed a Medical Treatment visa.
At paragraph 35, the Tribunal stated that the applicant’s immigration history led it to conclude that the applicant was using the Medical Treatment visa for the purpose of maintaining ongoing residence in Australia, noting that the visa is not subject to the s 48 bar. The Tribunal found that the applicant was not a genuinely intending to stay in Australia temporarily for the purpose of the Medical Treatment visa and that he did not meet cl 602.215 of Schedule 2 of the Regulations.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 7 October 2022. The grounds are reproduced below as they appear in the application:
1. The Tribunal failed to consider several vital integers of my case;
2. The Tribunal failed to consider many vital evidence that are relevant to my case;
3. The Tribunal deprived me of procedural fairness.
4. The Member has failed to do his duty
These grounds were not supported by any particulars contained within the Initiating Application or any other documents filed with the Court.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.
The applicant told the Court he was not aware that the hearing would be bought on so quickly. He claimed he had financial issues which prevented him from obtaining legal representation. The grounds of judicial review had been prepared by a friend, who had some legal knowledge, but he (the applicant) was not ready to talk about the matters.
The applicant requested the Court adjourn the hearing so he could obtain legal representation. The applicant further stated that due to his mental health issues he had not been in a fit state to look at the case and obtain evidence in support of his claims.
At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to say anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The grounds of judicial review, insofar as Grounds 1 and 2 complain that the Tribunal failed to “consider several vital integers” or “evidence” in his case, the applicant does not point to any relevant integer or evidence that was overlooked or not considered. On a fair reading of the Tribunal’s reasons, it is evident that it meaningfully engaged with the specific claims made by the applicant and the evidence adduced.
Ultimately, the Tribunal engaged in the evaluative exercise of determining whether or not it was satisfied that the applicant genuinely intended to stay temporarily in Australia for the visa purpose. It found it was not satisfied of this fact. It should be noted that the applicant was offered the opportunity to appear before the Tribunal, however consented to the Tribunal deciding the review on the information that was before it, contained in the papers. The applicant cannot now complain that his application was rejected, in part, because he failed to avail himself of the opportunity of appearing before the Tribunal: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25].
Grounds three and four appear to amount to procedural fairness complaints. It was submitted that it was for the applicant to make out his case: Commissioner of Taxation v Glennan (1990) 90 FCR 538 at [82]. There was no requirement to give the applicant a “running commentary” regarding the evidence that have been adduced: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].
The applicant was aware from the delegate’s decision what the issue was under review. The delegate expressly noted concerns about the applicant’s migration history. The applicant was informed that the Tribunal was not able to make a favourable decision on the application for review alone and was accordingly invited to attend a hearing to “give evidence and present arguments relating to the issues arising in (his) case”. Nonetheless the applicant elected not to attend the hearing and consented to the Tribunal making a decision “on the papers without taking further steps to allow (him) to appear”. In these circumstances, any complaint that the applicant was denied procedural fairness is hollow. No mandatory relevant consideration was ignored and no irrelevant consideration was taken into account. The Tribunal’s decision relied on weight that the Tribunal ascribed to each relevant factor and the outcome was within the Tribunal’s decisional freedom. Grounds three and four ultimately amount to contentions of impermissible merits review.
CONSIDERATION
In considering whether or not to exceed to the applicant’s request for an adjournment of the hearing, the Court noted that the applicant had been aware since 28 March 2023, that the matter was listed final hearing on 14 June 2023. The Court notes that the applicant has had no engagement with the Court, has failed to file any submissions or other material, and only sought the adjournment when the matter was called on for final hearing.
The Court notes that no real prejudice would flow to the respondent if the hearing was adjourned. However, this is not the end of the matter. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62] the following was said:
… there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.
There is also a significant public interest in the finality of administrative decisions. In Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15] the following was said:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
The Court notes that the applicant first arrived in Australia on 7 February 2008 as the holder of a vocational education sector visa, which remained in effect until 15 March 2010. The applicant has unsuccessfully applied for various visas since that date including, seeking both merits review at the Tribunal and judicial review in the Courts. The application for merits review is the second application for a Medical Treatment visa. The Court notes that the applicant has not held a substantive visa since 16 March 2010.
Taking into account the lack of engagement by the applicant in the Court processes, and the lack of substantive reasons given for failing to seek an adjournment at an earlier point of time, the Court is not satisfied that it is in the interests of justice that the applicant be allowed further time in which to prepare his matter for hearing. Accordingly, the Court declined to grant an adjournment.
In terms of the substantive grounds of judicial review, the Court notes that the claims are bland assertions of judicial error and lack any particulars. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
A fair reading of the Tribunal’s decision indicates that it fully engaged with those matters that were before it in the papers, noting that the applicant declined to appear before the Tribunal to provide further material as to any additional matters or evidence that he wished the Tribunal to consider. The Court is not satisfied that the Tribunal failed to consider any “vital integers” or “vital evidence” relevant to the applicant’s case. Grounds one and two have no merit
Grounds three and four appear to be claims of procedural unfairness. A review of the Tribunal’s decision and the material contained within the Court book clearly indicates that the Tribunal properly complied with its procedural fairness requirements. The applicant was invited to attend the hearing to give evidence and present arguments. He declined to do so, and consented for the Tribunal to deal with the matter on the material that was before it. No procedural fairness issue accordingly arises. The Tribunal complied with all relevant requirements and set out in detail why, in its view, the applicant did not meet the requirements of cl 602.212 of the Regulations.
The Tribunal was satisfied that the applicant was seeking to use the Medical Treatment visa pathway in order to remain in Australia on an ongoing or permanent basis. The Tribunal noted that the medical treatment the applicant sought was for a period of six months from 19 March 2021. That period had expired as at the date of the Tribunal’s decision on 26 October 2022.
The applicant had not provided any reason why he failed to depart Australia after his period of medical treatment had been completed in approximately September 2021. The Court is satisfied that the Tribunal complied with all relevant procedural fairness requirements and there is no error on the face of the Tribunal decision record. Grounds and three and four have no merit.
As the applicant is unrepresented, the Court has considered whether or not any other jurisdictional error is apparent. None has been detected.
CONCLUSION
As none of the grounds of judicial review have any merit, the application is dismissed
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 30 June 2023
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