Patel v Minister for Immigration

[2017] FCCA 2343

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2343

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Medical Treatment (Visitor) (Class UB) visa – Tribunal complied with its statutory obligations in the conduct of the review – Tribunal complied with the requirements of procedural fairness no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl. 602.213 of Schedule 2, Schedule 3

Applicant: NITABEN MUKESHKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1024 of 2017

Judgment of: Judge Street

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Sydney

Delivered on: 26 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1024 of 2017

NITABEN MUKESHKUMAR PATEL

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) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 March 2017, affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The applicant is a citizen of India, who applied for the Medical Treatment (Visitor) (Class UB) visa on 11 July 2016. The delegate refused to grant that visa on 19 July 2016. The delegate identified the criteria that had to be met under cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and in particular the requirements of Schedule 3 criteria 3001. In that regard, the last substantive visa was held by the applicant on 28 December 2012, and the delegate found the applicant failed to meet the criteria under the Act.

3. The applicant applied for review, and was invited and attended hearing on 10 March 2017. The Tribunal identified the background to the application for the visa and the requirements of cl.602.213 of the Regulations. The Tribunal found that the applicant’s last substantive visa expired on 28 December 2012 and that accordingly, 28 December 2012 was the relevant date. The Tribunal identified the application was made on 11 July 2016, and accordingly found the applicant did not satisfy criterion 3001, and found that the applicant failed to meet the criteria under cl. 602.213 of the Regulations, and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:

   1. 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.

   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.

2. On 24 April 2017, a Registrar of the Court made orders providing the applicant with 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 identified that this matter was being heard concurrently with the applicant’s husband’s application, and the Court explained that it would hear both parties at the same time. The Court explained to the applicant that this was a final hearing of her matter 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 Court was considering whether the Tribunal’s decision was unlawful or unfair. 

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision of the Tribunal would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence, give the applicant an opportunity to put submissions, hear submissions from the solicitor for the first respondent, and then give the applicant an opportunity to put submissions in reply. The applicant did not seek to put submissions from the bar table.

Consideration

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal correctly identified the criteria for the visa application, and made findings in respect of the criteria that were open to the Tribunal.  On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. There is no substance in the assertion that the Tribunal did not have jurisdiction. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, there is no error identified in the Tribunal’s understanding of the relevant evidence. In the present case, the critical issue was whether the applicant met criterion 3001. As the applicant’s last substantive visa expired in 2012, the applicant could not possibly succeed in meeting the requirements for the grant of the medical visa. Accordingly, ground 2 fails to make out any jurisdictional error.

2. This is a case where the application for a medical visa appears to be an abuse of process and had no prospect of success. It is difficult to understand why any bridging visa was granted at the time that this application for the medical visa was made which could not possibly succeed. These proceedings were also doomed to failure. Bridging visas should not ordinarily be granted in circumstances where the application is patently vexatious and doomed to failure.

3. The consequence of the bridging visa in the present case is that time and expense has been occupied by the delegate, the Tribunal and the Court, in circumstances where the applicant’s case had no merit or prospect of success, and was both vexatious and unreasonable. 

4. There are a significant number of applications that have been filed in this Court relating to applications for medical visas in circumstances where the last substantive visa expired years before. In circumstances where it is apparent the mandatory criteria cannot be met, it is difficult to understand why the Department is permitting a bridging visa to be issued whilst the vexatious application is being pursued. These proceedings had no prospects of success. 

5. Accordingly, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 October 2017