FEDERAL COURT OF AUSTRALIA

Matar v Minister for Immigration and Border Protection [2017] FCA 1314

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 26 July 2017 be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

introduction

1    The applicant seeks leave to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 12 July 2017 in which the applicant’s Application in a Case filed on 15 July 2016 was dismissed with costs. Leave is required because the Federal Circuit Court judgment was interlocutory in nature: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The applicant is a citizen of Lebanon who came to Australia on 8 August 2007 as the holder of a prospective spouse visa. On 29 October 2015, he applied for a Medical Treatment (Visitor) Class (UB) visa (a Medical Treatment visa). A Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The criteria for granting this visa are set out in Pt 602 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Cl 602.213 applies to applicants, like the applicant, who are in Australia at the time the visa application is made. It relevantly requires the visa applicant to hold a substantive temporary visa at the time of the application or, if not, to satisfy certain other requirements. One of these requirements is that the visa applicant must have applied for the Medical Treatment visa within 28 days after ceasing to hold a substantive visa: Criterion 3001 of Sch 3 to the Regulations.

3    On 3 November 2015, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to grant the applicant a Medical Treatment visa because the applicant was not a substantive visa holder at the time of his application and did not meet the additional requirement to which I have referred. The applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review that decision.

4    On 18 March 2016, the Tribunal affirmed the decision under review. The Tribunal found that the applicant ceased to hold a substantive visa on 21 December 2010. As his application for a Medical Treatment visa was made on 29 October 2015, the applicant could not satisfy Criterion 3001 and, therefore, failed to satisfy the requirements of Pt 602 of Sch 2 to the Regulations.

5    On 5 April 2016, the applicant commenced proceedings in the Federal Circuit Court to quash the Tribunal’s decision. However, the applicant failed to appear at directions hearings on 29 April 2016 and 20 May 2016. On 20 May 2016, at the Minister’s request, the Federal Circuit Court dismissed the proceeding under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), with costs.

6    On 24 June 2016, the applicant filed an Application in a Case seeking to reinstate the dismissed proceeding. The reinstatement application was listed for 8 July 2016. The applicant was advised accordingly. He failed to appear on 8 July 2016, whereupon the Federal Circuit Court dismissed the reinstatement application, with costs.

7    On 15 July 2016, the applicant filed a further Application in a Case seeking reinstatement of the dismissed proceeding. The further reinstatement application came on for hearing on 14 September 2016. In accordance with established principle (MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344), the primary judge directed his attention to:

    whether there was a reasonable excuse for the applicant’s failure to attend the hearings to which I have referred;

    whether there was any prejudice that might flow to the Minister should reinstatement be granted; and

    whether the applicant had reasonably arguable prospects of succeeding in his substantive application to quash the Tribunal’s decision.

8    The primary judge was not satisfied that the applicant had given a satisfactory explanation for his failure to attend court on 29 April 2016, 20 May 2016 and 8 July 2016. However, he did not consider this circumstance to be necessarily decisive against reinstatement of the dismissed application. Having found that the Minister would not suffer particular prejudice if an order for reinstatement were to be made, the primary judge turned to consider whether the applicant’s substantive application had reasonably arguable prospects of success in demonstrating that the Tribunal’s decision was affected by jurisdictional error.

9    In this connection, the applicant had raised two grounds, expressed as follows:

1.    The Tribunal Member failed to take into consideration our exceptional and compelling circumstances as per evidence given under oath and written submission addressed to the Minister.

2.    I will provide detailed information when I receive copy of my file and the requested CD of the hearing.

10    As to the first ground, the primary judge concluded, correctly, that it was not open to the Tribunal to take into account “exceptional and compelling circumstances” in considering the decision under review. The Tribunal was bound, as was the Minister’s delegate, to refuse the applicant’s application because of his inability to satisfy Criterion 3001: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235; Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352; Singh v Minister for Immigration and Border Protection [2017] FCA 525.

11    As to the second ground, the primary judge noted that no further “detailed information” had been provided to the Federal Circuit Court by the applicant. In any event, the ground that had been raised was not meaningful and could not establish that the Tribunal’s decision was affected by jurisdictional error.

12    In the circumstances, the primary judge dismissed the further reinstatement application, with costs. It is from that judgment that the applicant seeks leave to appeal to this Court.

The application for leave to appeal

13    The applicant’s Application for leave to appeal contains one ground, expressed as follows:

1.    His Honour Judge Dowdy provided a judgment which does not reflect that he considered the grounds in my application and failed to take into account our compelling and compassionate circumstances.

14    The applicant’s draft Notice of appeal contains two grounds, expressed as follows:

1.    I appeared with my wife before His Honour Judge Dowdy on 14 September 2016. I do understand that His Honour was sympathetic but the argument about reasonable prospect of success has caused problems and while my wife, myself and two children appreciate the sympathy of His Honour we hope that the Federal Court of Australia will look at our case differently. I gave evidence about why I was not able to attend the first court. There is no dispute that my wife attended Westmead Hospital on 7 July 2016.

2.    His Honour stated that there is no point or purpose in the interest of the administration of justice that my case/application filed in Court on 5 April 2016 be reinstated. I do hope that the Federal Court of Australia will assist me and accept that the application of 15 July 2016 be accepted and reinstated.

15    At the hearing of the Application for leave to appeal, the applicant appeared in person assisted by his wife, who acted as an interpreter. Although having been directed to do so, by orders made on 29 August 2017, the applicant did not file and serve a written outline of submissions. The applicant nevertheless addressed the Court and raised a number of questions, through his wife. The Minister filed and served a written outline of submissions and, understandably, was content to rely on those submissions.

16    As to the ground stated in the Application for leave to appeal, it is plain from the primary judge’s reasons that he did consider the grounds of the application before him. However, as I have noted, his Honour correctly concluded that it was not open to the delegate or the Tribunal to take into account the applicant’s circumstances, beyond the requirements of the Regulations, when considering whether the applicant should be granted a Medical Treatment visa. No discretion was reposed in the delegate or the Tribunal in that regard.

17    As to the grounds in the draft Notice of appeal, no appealable error is identified. The first ground does no more than invite the Court to substitute its own assessment of the facts for the primary judge’s finding that the applicant had failed to give a satisfactory explanation for his non-attendances. There is no justification for the Court to embark upon its own assessment of the facts in the absence of demonstrated error. The second ground invites the Court to allow the applicant’s application for a Medical Treatment visa as a matter of discretion, despite the fact that the applicant does not satisfy the eligibility criteria for that visa. The Court has neither jurisdiction nor power to do so.

Conclusion and disposition

18    The appeal which the applicant seeks to bring to this Court cannot succeed. It follows that leave to appeal should be refused. In the circumstances, the applicant should pay the Minister’s costs.

Associate:

Dated:    15 November 2017