FEDERAL COURT OF AUSTRALIA

Bhandari v Minister for Immigration and Border Protection [2018] FCA 1802

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is application for leave to appeal from a decision of the Federal Circuit Court given on 14 June 2018. That Court summarily dismissed Mr Bhandari’s application on the basis that he had no reasonable prospects of successfully prosecuting it. In that proceeding, he had sought orders setting aside an earlier decision of the Administrative Appeals Tribunal.

2    The Tribunal had concluded that he was not eligible for a Medical Treatment (Visitor) (Class UB) visa and affirmed a decision of a delegate of the Minister to the same effect. There are a number of eligibility requirements for such a visa, one of which is that an applicant must apply for it within 28 days of the expiry of the applicant’s last substantive visa: see Migration Regulations 1994 (Cth) sch 2 cls 602.212(6), 602.213(3) and (5); sch 3 criteria 3001(1) and (2)(c).

3    In this case, Mr Bhandari last held a substantive visa on 28 March 2011. This was a student visa. Consequently, to be eligible for the Medical Treatment visa, he had to apply for it by 25 April 2011. He did not, in fact, apply for the Medical Treatment visa until 31 May 2017. Consequently, he was not eligible for the visa, and the Tribunal’s conclusion to that effect was inevitable.

4    The Federal Circuit Court rejected each of Mr Bhandari’s grounds of review. It detected no error of law in the Tribunal’s conclusion that he was not eligible for the visa since he was, in fact, not eligible. It did not accept that the Tribunal had failed to consider his circumstances, noting that the dispositive issue before the Tribunal was Mr Bhandari’s ineligibility arising from his application being lodged outside the 28-day time limit. The Tribunal had considered his visa history sufficiently to allow that point to be considered.

5    In his grounds of his draft notice of appeal to this Court, Mr Bhandari claims that the Tribunal hearing was uninformative and that the circumstances were inadequate. He further claims that there had been a breach of procedural fairness and natural justice in the way the hearing had been conducted. It is unclear whether this ground also raises a claim of bias.

6    Assuming in his favour that these can be raised, that the hearing was uninformative and the circumstances inadequate, these do not disclose grounds of review. So far as procedural fairness is concerned, he was asked by the Tribunal to comment on the fact that he was not eligible because his application was lodged outside the 28-day timeframe. That was enough.

7    In relation to the bias argument, it might be observed that a Tribunal hearing in relation to a class of visa for which an applicant is clearly not eligible is likely to be a fairly brusque affair, and that fact by itself does not indicate the presence of bias; merely a very busy tribunal with no doubt weightier matters to which to attend.

8    In any event, even if these arguments were accepted, Mr Bhandari is simply not eligible for the visa and any relief would be declined on discretionary grounds.

9    The application for leave to appeal is dismissed with costs.

Associate:

Dated:    19 November 2018