FEDERAL COURT OF AUSTRALIA

Bassi v Minister for Immigration and Border Protection [2018] FCA 1309

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal, filed on 17 April 2018, 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

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    In December 2015, Mr Jagpal Singh Bassi, a citizen of India, applied for a Medical Treatment (Visitor) (Class UB) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection. Mr Bassi applied to the Administrative Appeals Tribunal for a review of that decision. That review application was unsuccessful. The Tribunal affirmed the decision to refuse to grant the visa to Mr Bassi. Mr Bassi challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. The primary judge in the Circuit Court summarily dismissed that application on the basis that Mr Bassi had failed to advance an arguable case of jurisdictional error on the part of the Tribunal.

2    In this application, Mr Bassi sought an extension of time to file an application for leave to appeal from the primary judge’s dismissal of his review application.

background

3    Mr Bassi applied for the visa on 7 December 2015. To be eligible for the visa, Mr Bassi was required to satisfy the criteria in cl 602.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth). At the time that Mr Bassi lodged his visa application, cl 602.212(2) of the Regulations was in the following terms:

(2)    All of the following requirements are met:

(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

(b)    arrangements have been concluded to carry out the treatment;

(c)    if the treatment is an organ transplant:

(i)    the donor of the relevant organ is accompanying the applicant to Australia; or

(ii)    all requisite arrangements to effect the donation of the organ have been concluded in Australia;

(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

(e)    arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

(f)    either:

(i)    the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

(ii)    evidence is produced that the relevant government authority has approved the payment of those costs.

4    In Mr Bassi’s visa application form, he indicated that he would be under medical care in Australia during the period 7 December 2015 to 24 February 2016. Mr Bassi did not, however, complete those parts of the form that required him to describe the medical treatment he had arranged. Nor did he provide any other details of that medical treatment.

5    On 8 December 2015, a delegate of the Minister sent an email to Mr Bassi’s migration agent, requesting that Mr Bassi provide certain information in relation to his visa application. That information included, relevantly: a description of the medical treatment he had arranged; the costs of the treatment; the details of the doctor in Mr Bassi’s home country that had made the referral for him to receive treatment in Australia; the doctor or hospital in Australia who would be providing Mr Bassi with medical treatment; and how Mr Bassi would be maintaining himself financially while in Australia. Plainly, that information was required to enable the delegate to determine if Mr Bassi met the criteria for the visa.

6    Neither Mr Bassi, nor his agent, responded to that letter or provided the delegate with any of the requested information. Nor did Mr Bassi or his adviser respond to a follow up email sent on 16 December 2015.

7    On 22 December 2015, the delegate refused to grant the visa to Mr Bassi. The delegate was not satisfied that Mr Bassi met the criteria in cl 602.212(2).

tribunal’s review and decision

8    On 11 January 2016, Mr Bassi lodged an application for review of the delegate’s decision with the Tribunal. On 6 September 2016, the Tribunal wrote to Mr Bassi and invited him to appear before it at a hearing on 21 September 2016. On the day before the hearing, the Tribunal requested that Mr Bassi provide it with essentially the same information that had earlier been requested by the delegate.

9    On 21 September 2016, Mr Bassi appeared before the Tribunal to give evidence and present arguments in relation to his application. Mr Bassi provided a number of documents to the Tribunal. Those documents included: a medical certificate dated 20 April 2016 from Dr Muhammad Qureshi certifying that he had examined Mr Bassi on 20 April and that, in his opinion, Mr Bassi was suffering from “adjustment disorder with anxiety and depression”; copies of prescriptions dated 20 April 2016 and 14 September 2016 for anti-depressants; an invoice for a “Level B surgery consultation” on 14 September 2016; and untranslated death certificates relating to both of his parents.

10    On 26 September 2016, the Tribunal affirmed the decision under review.

11    In its statement of reasons, the Tribunal summarised the procedural history of the matter, noting that Mr Bassi had failed to provide certain information with his visa application form and failed to respond to two letters from the Minister’s Department which requested that information. The Tribunal noted that it had also written to Mr Bassi on 20 September 2016 requesting the same information and that, on the day of the hearing, Mr Bassi had provided a medical certificate, prescriptions, an invoice and death certificates relating to his parents.

12    The Tribunal noted that Mr Bassi’s evidence was that he did not read the visa application form that was submitted by his migration agent and was not aware that the information required to support his application was not provided. Mr Bassi also gave evidence that he was not aware of the delegate’s requests for the information. Mr Bassi told the Tribunal that he had had problems at the college where he was studying which resulted in the cancellation of his courses of enrolment. That impacted his ability to obtain an extension of his student visa. He also stated that he had a difficult time following the death of his mother and the rejection of his wife’s visa application. Those events had a negative impact on his health. He claimed that he was not eating or sleeping well and had been diagnosed with depression.

13    Mr Bassi confirmed that the medical condition for which he was receiving treatment from 7 December 2015 to 24 February 2016 was the depression he was suffering as a result of his mother’s death and the inability of his wife to obtain a visa. In response to a question from the Tribunal as to why he had provided a medical certificate that referred only to the fact he had been examined on 20 April 2016, and not prior to his visa application, Mr Bassi explained that he had been taking advice from his wife who was a nurse with a Bachelor of Science degree. Mr Bassi also gave evidence that he was unable to afford medical treatment in India because he had paid for health insurance in Australia and therefore could not afford to pay in India.

14    Despite the evidence and submissions it received from Mr Bassi, the Tribunal was not satisfied that Mr Bassi satisfied the requirements in cl 602.212(2) of Schedule 2 to the Regulations. The Tribunal accordingly affirmed the decision under review.

the circuit court proceedings and judgment

15    Mr Bassi applied to the Circuit Court for judicial review of the Tribunal’s decision. His application advanced the following ground (as drafted):

I want to positive decision in favour with me, I won’t complete study.

16    The primary judge set the matter down for hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At such a hearing, known as a “show cause” hearing, the Circuit Court can dismiss the application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) of the Circuit Court Rules makes it clear that such a dismissal is interlocutory in nature.

17    Mr Bassi attended a hearing in the Circuit Court on 23 March 2018. After hearing submissions from the parties, the primary judge dismissed Mr Bassi’s application and gave reasons ex tempore.

18    In his written Judgment, the primary judge noted that, at the hearing, Mr Bassi had indicated that he had not received a copy of the court book filed in the matter by the Minister. The primary judge informed Mr Bassi of the nature of the documents contained in the court book and adjourned briefly to allow him some time to examine the court book. The primary judge noted that, upon resuming the hearing, Mr Bassi had no objection to the court book being tendered. It was so tendered and marked as an exhibit.

19    The primary judge also recorded that Mr Bassi had sought to tender a number of documents. The first set of documents consisted of a copy of an overseas student confirmation of enrolment form, a bank statement dated 21 March 2018 and an elector photo identity card. The second document was a copy of a medical certificate issued on 22 February 2017. That certificate included an opinion by the author that Mr Bassi had been suffering from adjustment disorder, with anxiety and depression, but had “now fully recovered” and that “at [that] time he [had] no such issues and [was] fit for study at any institution”.

20    The tender was objected to by the Minister on the basis of relevance. The primary judge held that the documents had no apparent relevance to Mr Bassi’s application for judicial review. His Honour also noted that the documents that Mr Bassi sought to tender were not documents that were before the Tribunal. The documents were accordingly not admitted into evidence.

21    The primary judge invited Mr Bassi to make submissions in relation to his review application. In his Judgment, the primary judge recorded Mr Bassi’s response to that invitation in the following terms (Judgment at [14]):

The applicant initially said that he has been studying for four years and that he has spent a lot of money doing so. He said he has not met his wife for two years, because he has no travel rights into and out of Australia – or, I should say, out or into Australia. He said he was looking to the future. He wants to get a normal visa – a student visa – and he wants the opportunity to make a future for himself and his wife. I specifically asked the applicant whether he believed the Tribunal did anything wrong or was unhappy with what the Tribunal did. The applicant simply said that his visa had been refused. He did not have enough documents, that he had previously suffered from depression, but he is over that now.

22    The primary judge found that the sole ground in Mr Bassi’s application for judicial review did not disclose an arguable case of jurisdictional error. His Honour found that the Tribunal’s conclusion that Mr Bassi did not satisfy the requirements for the grant of the visa was not only open to it, but, given the absence of the information requested by the Tribunal, there was no other finding it could have made.

23    The primary judge noted that, while it was understandable that Mr Bassi wanted to study and make a life for himself and his wife in Australia, the right of a non-citizen to do so depended on the grant of a visa subject to the conditions provided in the Act and the Regulations. The primary judge found that the difficulty for Mr Bassi was that it was apparent that he wanted an opportunity to obtain a student visa, but had applied for a medical treatment visa. His Honour found that there was “no question”, on the material before him, that the Tribunal did not make a jurisdictional error in concluding that Mr Bassi did not satisfy the criteria for the grant of the visa.

24    The primary judge concluded that Mr Bassi was unable to advance an arguable case of jurisdictional error by the Tribunal and accordingly dismissed the application pursuant to r 44.12(1)(a) of the Circuit Court Rules.

application for extension of time and leave to appeal

25    Mr Bassi sought an extension of time to file an application for leave to appeal from the judgment of the Circuit Court. Leave to appeal was required because the dismissal of Mr Bassi’s case pursuant to r 44.12 of the Circuit Court Rules was an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave. An extension of time was required because r 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days after the date on which judgment was pronounced. Mr Bassi filed his application for leave to appeal eight days outside that time period.

26    A consideration relevant to the exercise of the Court’s discretion to extend the time within which an application for leave to appeal may be filed is the likelihood of leave to appeal being granted: Croker v Philips Electronics Australia Ltd [2000] FCA 1731 at [5]. In considering whether leave to appeal should be granted, the first limb of the relevant test generally involves a consideration of whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

27    It is accordingly appropriate to first consider whether Mr Bassi has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The starting point is Mr Bassi’s proposed grounds of appeal.

28    Mr Bassi’s application for an extension of time and leave to appeal contained the following grounds (as drafted):

1.    NATURAL JUSTICE.

2.    FAIR HEARING.

3.    IGNORING MATERIALS THE DECISION MAKER WAS REQUIRED TO LOOK AT.

[I got given wrong info about the time I have to apply further. Therefore I got late and Need extension of time to seek leave to appeal]

29    Mr Bassi also relied on an affidavit sworn by him which annexed his draft notice of appeal. The grounds of appeal in the draft notice of appeal were (as drafted):

I was not given natural Justice and fair hearing in the proceedings of the Federal Court against my decision of AAT. Relevant material was not considered.

I want the case to be considered for hearing and give me justice by a fair hearing and natural Justice.

I want this case to be listed in Full Federal Court.

30    Mr Bassi did not file any written submissions as directed by the Registrar. He did, however, make oral submissions at the hearing.

31    Mr Bassi’s oral submissions addressed three broad topics. The first topic concerned the primary judge’s refused to admit into evidence the documents Mr Bassi wanted to rely on. He submitted that those documents were relevant because they showed that he was now well enough to complete his studies. In his submission, the primary judge therefore should have admitted them into evidence and had regard to them. Mr Bassi was permitted to tender those documents, without objection, in support of his application.

32    The second and related topic addressed by Mr Bassi in his oral submissions concerned his continuing desire to remain in Australia to complete his studies. He submitted that he had studied in Australia for four years, had spent a lot of money pursuing those studies and that he wished to be able to complete them. When it was pointed out to Mr Bassi that the Tribunal’s decision concerned his application for a medical treatment visa, not a student visa, he said that he had been given incorrect advice by his migration agent. He said that he previously had a student visa, but after his mother died he had mental health problems that made it difficult for him to complete his studies. When that occurred, his migration agent advised him to apply for a medical treatment visa.

33    The third topic addressed by Mr Bassi in his oral submissions related to his explanation for not filing his application for leave to appeal within time. His explanation was that a migration agent had told him that he had 28 days to file his application. Someone else, it is not entirely clear who, told him he had 21 days. It was only when he attended the Registry to file his application that he realised he was out of time.

merits of the proposed appeal

34    Mr Bassi’s only real ground for his proposed appeal was that he was denied natural justice or procedural fairness. That claim appears to be based entirely on the fact that the primary judge refused to admit into evidence the documents that Mr Bassi sought to tender at the hearing. It is, however, readily apparent that those documents were not relevant to Mr Bassi’s application for judicial review of the Tribunal’s decision. That is apparent, not only from the primary judge’s description of those documents, but from the documents themselves.

35    Mr Bassi argued, both before the primary judge and in support of his application in this Court, that the documents were relevant because they established that he was ready to resume his studies. Mr Bassi’s readiness to resume his studies, however, could not in any way rationally bear on whether the Tribunal erred in a jurisdictional sense in affirming the delegate’s decision to refuse to grant him a medical treatment visa. The primary judge was plainly correct to reject the tender of the documents.

36    It may well be the case that Mr Bassi was given incorrect advice that led him to apply for a medical treatment visa. That circumstance did not provide any basis for any ground of review in the Circuit Court, nor does it give him a ground of appeal. Indeed, if anything, it serves only to demonstrate that the Tribunal was correct in finding that Mr Bassi did not meet the criteria for the visa in question. It perhaps explains why he did not provide the information necessary for the grant of a medical treatment visa either to the delegate or the Tribunal. The fact that Mr Bassi might now be in a position to resume the studies for which he was apparently originally granted a student visa, is entirely beside the point.

37    There is otherwise no evidence to support Mr Bassi’s claim that he was denied procedural fairness. It is readily apparent from the primary judge’s judgment that Mr Bassi was afforded every opportunity to adduce any relevant and admissible evidence and every opportunity to make submissions in support of his judicial review application. The allegation of denial procedural fairness in Mr Bassi’s written application has no foundation and must be rejected.

38    Mr Bassi did not identify any other ground of appeal, let alone an arguable ground of appeal. There is nothing to suggest that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered on appeal by the Full Court. Indeed, a fair reading of the judgment of the primary judge reveals that his Honour was plainly correct to dismiss Mr Bassi’s application.

39    As for Mr Bassi’s desire to consider his studies in Australia, the question whether he may be able to apply for a further student visa, or seek ministerial intervention, or some other administrative indulgence, based on his past and present circumstances, is something that Mr Bassi will have to take up with the Minister. It is not something that gave him a right of relief in the court below. Nor is it something that is properly able to be ventilated in any appeal in this Court.

40    Finally, it should perhaps be noted that Mr Bassi’s explanation for his failure to apply for leave to appeal within time was not entirely satisfactory. Applicants who wish to appeal, or apply for leave to appeal, from judgments of the Circuit Court should make their own enquiries of the Registry concerning the time within which they must file an appeal or application for leave to appeal, as the case may be. Those inquiries should be made as soon as possible and a contemporaneous record of them should be made and retained. Uncorroborated and vague claims by applicants that they were given incorrect advice about the period of time within which they were required to file an appeal or application for leave to appeal are becoming all too frequent in this Court. They are rarely very persuasive.

41    Nevertheless, the real reason why Mr Bassi’s application must be refused is that he has failed to show that he has any arguable case on appeal. His application is accordingly dismissed.

42    Mr Bassi has not provided any relevant reason why he, as the unsuccessful party, should not be required to pay the Minister’s costs. Like many applicants in his position, all he could submit was that he was not in a financial position to meet any costs order. That alone is generally not a sufficient reason to withhold a costs order in favour of the Minister. Mr Bassi should accordingly be ordered to pay the Minister’s costs.

Associate:

Dated:    28 August 2018