FEDERAL COURT OF AUSTRALIA
Iftikhar v Minister for Immigration and Border Protection [2018] FCA 1197
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY J:
1 This is an appeal from the Federal Circuit Court (“the FCC”): see Iftikhar v Minister for Immigration and Border Protection [2018] FCCA 1157. The FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).
2 The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant Mr Iftikhar a Medical Treatment (Visitor) (Class UB) visa. The delegate had refused the application because Mr Iftikhar had not satisfied a number of the criteria for the grant of such a visa. It is sufficient, for present purposes, to refer to one of those disabling criteria. That criterion was prescribed by cl 602.213 in Sch 2 of the Migration Regulations 1994 (Cth). The relevant requirement was that the application for the visa was validly made within 28 days after the last day on which the applicant held a substantive visa: see Sch 2 cl 602.213(3) and (5) and Sch 3 criterion 3001.
3 It was not disputed that Mr Iftikhar made his application on 30 March 2017. He had not held a substantive visa since 14 November 2013.
4 Mr Iftikhar conceded, in the Tribunal, that he did not satisfy this and other criteria. The Tribunal accepted that the Minister’s delegate had been correct in determining that Mr Iftikhar was not eligible to be granted a medical treatment visa.
5 His judicial review application to the FCC was made on two grounds. They were:
1. 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. 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.
(Errors in original.)
6 The primary judge rejected both grounds and dismissed the application.
7 His Honour held (at [6]) that the “true nature of the applicant’s evidence” had included evidence as to the date on which he had last held a substantive visa and the date on which he had made the application for a medical treatment visa. As a result of this evidence, the Tribunal’s decision was inevitable. The Tribunal’s “reasonable satisfaction” had been arrived at in accordance with the provisions of the relevant legislation.
8 Mr Iftikhar’s notice of appeal to this Court contained two grounds. They were:
1. The Federal Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Act;
2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
Neither of these grounds was particularised.
9 The hearing of the appeal was listed for this morning some weeks ago and Mr Iftikhar was so advised. By letter dated 3 August 2018 Mr Iftikhar requested an adjournment of the hearing “to facilitate me to arrange and take care of my health and my mental health issues.” He said he was receiving medical treatment and that his mental and physical state was such that he was not fit to travel from Griffith to Sydney for the hearing. Although Mr Iftikhar attached to his letter certain dated medical certificates, there was no medical evidence to support his adjournment application. On 6 August 2018 Mr Iftikhar provided a further medical certificate of the same date. Although the medical certificate said that he was “unable to continue his usual work” it did not say anything about the Court hearing.
10 That application was opposed by the Minister.
11 I caused the Registry to advise Mr Iftikhar that, if he was not able to travel to Sydney to appear personally at the hearing, a telephone link would be established so that he could participate in the hearing.
12 When the matter was called on this morning Mr Iftikhar attended by telephone link and had the assistance of an interpreter.
13 He renewed his application for an adjournment, saying he wanted “one last chance” to consult lawyers before having to make submissions in support of his appeal. I rejected this application given the length of time which has passed since the FCC’s decision was handed down and the absence of any evidence about any efforts he may have made to obtain legal advice in the meantime.
14 I asked Mr Iftikhar to explain why he contended that the Tribunal had no jurisdiction to make the decision about which he complained. He was unable to offer any elaboration of this ground.
15 I also asked him what legal and factual errors, which appeared in the Tribunal’s decision, had not been considered by the primary judge. Again, Mr Iftikhar was unable to identify any relevant errors.
16 I explained to Mr Iftikhar the limited scope for this Court’s intervention on an appeal from the FCC and that his appeal could only be successful if he was able to point to some appellable error in the Tribunal’s reasons.
17 I can detect no such error. On the contrary, I consider that the primary judge’s decision was correct for the reasons which he gave.
18 This appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
