FEDERAL COURT OF AUSTRALIA

Lababidi v Minister for Immigration and Border Protection [2019] FCA 218

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

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

REASONS FOR JUDGMENT

FARRELL J

Introduction

1    This is an application for leave to appeal from orders made by the Federal Circuit Court of Australia on 10 September 2018: see Lababidi v Minister for Immigration & Anor [2018] FCCA 2545. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, made on 28 February 2017, affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse the grant of a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). The application was dismissed under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Accordingly the decision is interlocutory in nature and leave to appeal is required: see r 44.12(2) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The applicant, who claims to be a citizen of Lebanon, arrived in Australia on 6 November 1994, having been granted a Close Family Visitor visa on 25 September 1994. He has not held a substantive visa since 1995. He says that he is now more than 70 years old and has ongoing heart problems.

3    On 27 June 2016, the applicant lodged an application for a medical treatment visa. On 28 June 2016, the delegate refused to grant the visa.

4    On 27 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision. On 27 February 2017, the applicant appeared before the Tribunal with the assistance of an Arabic interpreter. On 28 February 2017, the Tribunal affirmed the delegate’s decision.

5    At that time the applicant made his application for the medical treatment visa, cll 602.212 and 602.213 of Sch 2 to the Migration Regulations 1994 (Cth) relevantly provided as follows:

602.212 

(1)    The requirements in one of subclauses (2) to (8) are met.

…

Unfit to depart

(6)    All of the following requirements are met:

   (a)     the applicant is in Australia;

   (b)     the applicant has turned 50;

   (c)    the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)    the applicant has been refused the visa;

(f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

602.213

…

  (3)    Subclauses (4) and (5) apply if:

(a)    the applicant was in Australia at the time of application; and

(b)    the applicant did not hold a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

  (4)    The last substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

6    Clause 3001 of Sch 3 to the Migration Regulations relevantly provided:

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) …, the relevant day, in relation to an applicant is:

…

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)    …

whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    … .

7    The basis of the Tribunal’s decision was that the applicant failed to satisfy the mandatory requirements of:

(1)    Clause 602.212(6) of Sch 2 to the Migration Regulations, because there was no written statement from a Medical Officer of the Commonwealth that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition before the Tribunal; and

(2)    The criterion in cl 3001 of Sch 3 to the Migration Regulations, because the application was not made within 28 days of the last substantive visa held by the applicant ceasing to have effect.

federal circuit court

8    On 3 April 2017, the applicant lodged an application with the Federal Circuit Court, applying for an order that the respondents show cause why a remedy should not be granted following judicial review of the Tribunal’s decision.

9    The grounds of review identified in the application were (as written):

1.    The Tribunal had medical evidence yet failed to accept that I am medically unfit to depart Australia.

2.    Even though my application was not lodged within 28 days I do have compelling circumstances which were not considered by the Tribunal.

10    The primary judge heard the application on 10 September 2018 and gave judgment that day. The primary judge noted (at J[8]) that the applicant maintained in oral submissions that he was unfit to depart and referred to the long duration in which he had been in Australia

11    With regard to the first ground, the primary judge found (at [9]-[10]) that on the face of the material before the Court, the Tribunal complied with its statutory obligations and procedural fairness obligations. A mandatory criterion for the grant of the visa was that the applicant provide a written statement from a Medical Officer of the Commonwealth in accordance with cl 602.212(6)(f) of the Migration Regulations. The applicant did not provide such a written statement to the Tribunal. The primary judge found that the Tribunal had no discretion as to the application of the mandatory criteria, despite the applicant’s assertion to it that he was unable to depart Australia. That assertion by the applicant does not identify a basis for an arguable case that the Tribunal’s decision was attended by jurisdictional error.

12    With regard to second ground, the primary judge found (at J[11]) that the applicable criteria for the grant of the visa did not include consideration of any compelling circumstances of the applicant. As a result, the ground did not disclose any arguable case of jurisdictional error affecting the decision of the Tribunal.

13    On the basis of the primary judge’s findings outlined above, the primary judge concluded that the applicant had not demonstrated an arguable case of jurisdictional error by the Tribunal and dismissed the application pursuant to r 44.12 of the FCC Rules. Although his Honour expressed sympathy for the applicant’s personal circumstances (at J[12]), his Honour noted that the Court did not have power to decide the case on compassionate or discretionary grounds and that the applicant’s submissions invited impermissible merits review.

APPLICATION to this court

14    On 24 September 2018, the applicant filed in this Court an application for leave to appeal the decision of the primary judge.

15    The application does not contain any grounds. However, the grounds of appeal in the draft notice of appeal which is annexed to the applicant’s supporting affidavit affirmed on 22 September 2018, are (as written):

1.    I appeared before His Honour Street on Monday 10 September 2018 with the assistance of an Arabic interpreter. His Honour dismissed my case and His Honour as well as the Tribunal failed to see that I am medically unfit to depart Australia and I was not asked by any authority to undergo medical examination to demonstrate that I am unable to travel and I did not provide the evidence because it was never requested. The Tribunal failed to understand my serious medical condition and misunderstood my claim and refused me because my application was not lodged within 28 days.

2.    The Tribunal and His Honour failed to see the relevant medical condition, my age, and the inability to travel.

16    I also observe that in the body of the applicant’s affidavit, the applicant deposes (as written):

I appeared before His Honour Judge Street and I was assisted by Arabic interpreter. I think I have a strong case and His Honour dismissed my case without looking at the new law which means even if I am on bridging visa I can apply for medical treatment visa even if my visa substantive visa runs out. I hope that the Federal Court of Australia will look at my case with more compassion because I am old an unable to depart Australia.

Consideration

17    The primary judge was required to determine whether he was satisfied that the application “raised an arguable case for the relief claimed”: r 44.12 of the FCC Rules. Appeals against such decisions are subject to the same principles as apply to discretionary decisions, thereby requiring the identification of errors of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17] and SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [22]-[23]. As noted in Samsung Electronics Co Limited v Apple Inc at [18]-[19]. Principally this requires consideration of whether, in all of the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The primary judge’s decision has the effect of finally determining the applicant’s rights, unless leave to appeal is granted, and that generally weighs in favour of granting leave.

18    The applicant appeared today and made submissions to the same effect as those made to the primary judge concerning his age, now 73 years, and that doctors have found that he is unable to travel.

19    However, I am unable to find that the grounds on which the applicant relies or his submissions disclose sufficient doubt as to the correctness of the primary judge’s decision to warrant leave being granted in circumstances where the Tribunal had no discretion to grant the applicant a medical treatment visa for the reasons that it gave. It is not apparent that the Tribunal (or the primary judge) failed to understand the applicant’s medical condition as he asserted it, however, the applicant has not submitted any evidence which indicates that the Tribunal had before it a written statement from a Medical Officer of the Commonwealth as required by cl 602.212(6)(f) and it was not incumbent on the delegate or the Tribunal to advise the applicant of that requirement. Further, even if such evidence had been provided to the Tribunal, cl 3001 of Sch 3 to the Migration Regulations would not have been satisfied, since no application was made within 28 days after the last substantive visa ceased, more than 20 years having elapsed. In those circumstances, the Tribunal was bound to make the decision that it did: see Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 200 at [36].

20    I take the reference to the “new law” to be to the legislative amendments in relation to medical treatment visa applications set out in the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth), which remove the requirement that a visa applicant satisfy cl 3001 of Sch 3 of the Migration Regulations, such that medical treatment visa applications no longer need to be made within 28 days of the “relevant day”. This amendment is effected by Schedule 3 which relevantly amends cl 602.213(3) by omitting “Subclauses (4) and (5) apply” and substituting “Subclause (4) applies” and repealing cl 602.213(5). Schedule 12 to the Migration Legislation Amendment (2017 Measures No 3) Regulations relevantly provides as follows:

Schedule 12 – Application and transitional provisions

…

Part 65 – Amendments made by the Migration Legislation Amendment (2017 Measures No. 3 Regulations) 2017

…

6503    Operation of Schedule 3

The amendments of these Regulations made by Schedule 3 of the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 apply in relation to an application for a Medical Treatment (Visitor) (Class UB) visa made on or after 1 July 2017.

21    Accordingly, it is only applications for a medical treatment visa made on or after 1 July 2017 which are exempted from the need to comply with cl 3001 of the Migration Regulations. In this case, the applicant lodged his application on 27 June 2016, so that the applicant does not have the benefit of the amendments made in the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017: see Ahmad v Minister for Immigration and Border Protection at [1].

Conclusion

22    The application must be dismissed with costs.

Associate:

Dated:    26 February 2019