FEDERAL COURT OF AUSTRALIA

Saeed v Minister for Home Affairs [2019] FCA 172

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an application for leave to appeal against a decision of the Federal Circuit Court of Australia dismissing, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”), the applicant’s application for judicial review of a decision of the second respondent (“the Tribunal”) made on 31 July 2017.

2    Before discussing the application for leave to appeal in more detail, I should refer to some general principles concerning the determination of such applications. The principles that guide the determination of applications for leave to appeal were considered by the Full Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [25]-[40]. Generally speaking, leave to appeal may be granted:

    where the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and

    substantial injustice would result if leave were refused, supposing the decision to be wrong.

3    The authorities show that the prospects of the applicant’s proposed appeal may be an important factor in determining whether or not to grant leave to appeal and that it will not usually be granted if the proposed appeal has no reasonable prospects of success.

4    In the present case, the applicant was not legally represented before the primary judge or at the hearing of this application. However, he has filed an affidavit in support of the application together with an application for leave to appeal that includes four grounds upon which he would wish to rely in the event that leave to appeal is granted. The four proposed grounds of appeal are:

(1)    The primary judge erred by holding that the Respondents did not make jurisdictional error by failing to exercise jurisdiction.

(2)    The Primary judge erred by holding that the second respondent did not consider written submissions of the applicant. The Tribunal failed to consider the integer of the applicant’s claim and failed to engage in active intellectual process to consider all of the applicant’s claim until the notification sent to the applicant.

(3)    The Primary judge erred by holding that the second respondent acted unreasonably by failing to defer its decision until the applicant had provided a relevant document as requested by the Tribunal.

(4)    The Primary judge erred by holding that the second respondent did not fell [sic] into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.359A of the Migration Act 1958 to get information or otherwise.

5    On 23 May 2017, the applicant lodged an application for a Medical Treatment (Visitor) (Class UB) visa. On 24 May 2017, a delegate of the Minister refused to grant that application because the delegate was not satisfied that the applicant met the requirements for the grant of such a visa. These requirements are found in clause 602.213 of schedule 2 of the Migration Regulations 1994 (Cth) (“Regulations”).

6    On 5 June 2017, the applicant sought a review of the delegate’s decision before the Tribunal. He filed an application for review attaching a copy of the delegate’s decision and its reasons. On 31 August 2017, the applicant appeared at a hearing before the Tribunal and on the same date the Tribunal affirmed the decision under review.

7    Later that day, after the Tribunal had affirmed the decision under review, the applicant sent a two emails to the Tribunal, which included a written submission as to why the Tribunal should waive the criteria set out in Schedule 3 of the Regulations and requesting that the Tribunal not make a decision until the applicant could submit a further medical report which he said he would submit on or before 12 September 2017.

8    On 27 September 2017, the Tribunal sent the applicant a letter stating that it had no power to consider the written submission or the deferral request because they were received after the Tribunal had made its decision. The relevant clauses of the Regulations, 602.213, 602.212(6) of Schedule 2 and 3001 to 3005 inclusive to Schedule 3, are attached to the Tribunal’s reasons for decision and I do not propose to reproduce them in these reasons.

9    The Tribunal noted that the applicant was required to satisfy the requirements of clause 602.213 of Schedule 2 of the Regulations and it had regard to the requirements of that clause. It noted that clause 602.212(6) of Schedule 2 of the Regulations did not apply to the applicant. At least one reason why this provision would not apply to the applicant was that he had not attained the age of 50.

10    The Tribunal, on the basis of the material before it, concluded that the applicant’s last substantive visa ceased on 24 September 2015 and that the applicant applied for the medical treatment visa on 23 May 2017. The Tribunal specifically noted in its reasons that at the hearing the applicant agreed that his last substantive visa ceased on 24 September 2015 and that he did not apply for the medical treatment visa until 23 May 2017.

11    During the course of hearing before me I drew the significance of these findings to the applicant’s attention. It is fair to say that he does not contest them.

12    In the result, as the Tribunal concluded, the applicant’s application for a medical visa was not made within 28 days of 24 September 2015, which was the relevant date for the purposes of criteria 3001 which is made applicable in this case by clause 602.213(5).

13    Before the Federal Circuit Court, the applicant relied on the following three grounds in support of his application for judicial review:

1.    The Tribunal failed to consider the integer of the applicant's claim and failed to engage in active intellectual process to consider all of the applicant's claim until the notification sent to the applicant.

Particulars

The applicant sent two submissions to the Tribunal on 01 September 2017 at 8.12 a.m. noting the following:

'Furthermore, due to my Shia background and my activities and my association with the TNFJ and my family's profile I fear either I would be prevented or deprived medical treatment by the authorities as a result of Sunni extremists influence or would face practical difficulties in seeking adequate treatment in Pakistan.

Further due to the issues I have with the Federal Agencies due to my passport issues since I suspect that federal agencies had a hand in using my details to send someone in my name to Australia, I genuinely believe I would be arrested at the airport to cover their issues and would be imprisoned. If I am imprisoned in Pakistan I would not be able to get adequate medical facilities and on the other hand my health condition will further worsen due to degrading inhuman cruel conditions prevailing in the prison.'

    The applicant provided relevant and sufficient information and claims on the issue to provide the compelling reasons to satisfy Schedule 3 criteria of the Regulations. The Tribunal sent its decision at 8.48 am on 01 September 2017. The above infom1ation and claims and submissions of the applicant were before the Tribunal before it sent its decision to the applicant. However, the Tribunal failed to consider the applicant’s claims and information on compelling reasons.

2.    The Tribunal acted unreasonably by failing to defer its decision until the applicant had provided a relevant document as requested by the Tribunal.

Particulars

The applicant in his submission dated 01 September 2017 at 8.25 a.m. requested the Tribunal to give some time until 12 September 2017 to provide further medical report in support of the applicant's application.

The Tribunal failed to wait till that time or failed to advise the applicant that it would not grant such extension of time and refused the application. As a result of that, the Tribunal acted unreasonably by failing to defer its decision.

3.    The Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.359A of the Migration Act 1958 ("the Act") to get information or otherwise.

Particulars

The Tribunal noted that the applicant's student visa expired on 24 September 2015. This is an information which should have been put under Section 359 A of the Migration Act 1958.

14    On 10 September 2018, the applicant attended a show cause hearing before the primary judge that was convened pursuant to r 44.12 of the FCCR. At the conclusion of the hearing, the primary judge made orders dismissing the application pursuant to that rule and provided ex tempore reasons for doing so.

15    As to the first ground that was relied upon before the primary judge, his Honour noted that the written submissions sent to the Tribunal purported to set out reasons why the Tribunal should waive the Schedule 3 criteria. As the primary judge noted, the short answer to that was the Tribunal had no jurisdiction to do this. Further, as his Honour also noted, at the time that submission was forwarded to the Tribunal it had already made its decision in relation to the applicant’s application for review.

16    As to the second ground relied upon before the primary judge which in substance asserted that the Tribunal erred by not granting the applicant’s request, his Honour found that there was no jurisdictional error in failing to do so because it was made after the Tribunal had made its decision and because there was never any contest before the Tribunal as to whether or not the applicant fulfilled the relevant requirements for the grant of a medical treatment visa.

17    The third ground relied upon before the primary judge was, in substance, an assertion that the Tribunal erred by not complying with its obligations to invite the applicant to comment on information pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”). The primary judge found that no such obligation arose because the alleged information fell within the exception set out in that section. This was because the relevant information was drawn from a record of the delegate’s decision which had been provided by the applicant to the Tribunal.

18    His Honour concluded that the application did not raise any arguable case for relief and he therefore dismissed it pursuant to r 44.12 of the FCCR.

19    Turning, then to the applicant’s proposed grounds of appeal, it should be noted that the applicant did not contest, whether before the Tribunal, before the primary judge, or before me, the essential facts that led the Tribunal to conclude that the application for a medical treatment visa should be refused.

20    The first proposed ground of appeal is the general assertion of jurisdictional error. It is not accompanied by any particulars and may be disregarded on that basis.

21    The second proposed ground of appeal, in substance, contends that the primary judge erred by failing to find that the Tribunal erred in not considering the written submission. In the circumstances of this case, and as his Honour found, there could be no jurisdictional error in failing to consider a written submission that was received after the Tribunal’s decision had been made.

22    Even if the written submissions had been received before the Tribunal gave its decision, it is impossible to see how they could have any bearing on the outcome of the application for review before the Tribunal. This is because, on the uncontested facts, the applicant could not satisfy the relevant requirements for obtaining a medical treatment visa.

23    The third ground upon which the applicant seeks to rely asserts that the primary judge erred by not finding that the Tribunal erred in not considering the deferral request. Again, in circumstances where the deferral request was received after the Tribunal had made its decision, this did not constitute a jurisdictional error. Further, the medical evidence which the applicant sought additional time to submit could have had no bearing on the ultimate outcome of the application for reasons that I have previously explained.

24    The fourth ground upon which the applicant seeks to rely encompasses two complaints. The first is that the primary judge erred by failing to find that the Tribunal failed to make inquiries. The applicant has not identified what inquiries the Tribunal was required to make, or why its failure to make inquiries could, in this case, constitute a jurisdictional error. In particular, the facts that were determinative of the outcome of the application at the Tribunal were not in contest.

25    The second part of this proposed ground of appeal raises the application of s 359A of Act. It is suggested that information as to the date upon which the applicant’s student visa expired was information which should have been put to the applicant pursuant to the requirements of s 359A of the Act.

26    For reasons given by the primary judge, with which I agree, no such obligation was engaged in the present case given that the relevant information was contained in the record of the delegate’s reasons for decision which had been submitted to the Tribunal by the applicant and which, as I have already mentioned, related to matters that were never in contest.

27    Further, as the Tribunal notes in its reasons, the applicant accepted that the last substantive visa held by him (Subclass TU-573) ceased on 24 September 2015 and that his medical treatment visa application was not made until 23 May 2017.

28    In all the circumstances, I am not persuaded that the applicant’s proposed appeal has any prospects of success, or that there is any arguable error in the primary judge’s reasons for concluding that the application did not disclose any arguable case for the relief claimed. The application for leave to appeal will be dismissed on that basis.

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

Associate:

Dated:    21 March 2019