FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2019] FCA 281

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal 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

1    This is an application for leave to appeal a decision of the Federal Circuit Court of Australia made on 13 August 2018: Patel v Minister for Immigration & Anor [2018] FCCA 2507. Pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the primary judge summarily dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, made on 2 June 2017, to affirm a decision of a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (medical treatment visa).

2    Having regard to the similarity of facts and issues, I have heard this application consecutively with proceeding NSD1522 of 2018 Sumitra Nilesh Patel v Minister for Home Affairs & Anor. I note that the applicant in that proceeding is the wife of the applicant in the present proceeding.

3    For the reasons given below, I dismiss this application with costs.

BACKGROUND

4    The applicant claims to be a citizen of India. He last held a substantive visa on 31 August 2009, having entered Australia on a tourist visa with his wife.

5    On 13 March 2017, the applicant lodged an application for a medical treatment visa which was marked as received on 14 March 2017.

6    The application for the medical treatment visa was refused by the delegate on 24 March 2017 on the basis that the applicant did not satisfy cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) and cl 3001 of Schedule 3 to the Migration Regulations.

7    Based on the evidence given by Sarah Rebecca Ingram by affidavit affirmed on 27 September 2017, the primary judge accepted that the applicant was advised of the delegate’s decision by email sent on 24 March 2017.

8    On 20 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

9    The Tribunal’s decision record dated 2 June 2017 indicates that, on 9 May 2017, by letter sent by way of email to the applicant, an officer of the Tribunal’s Registrar informed the applicant that she was of the view the application was invalid, it being lodged after the expiry of the prescribed 21 day period within which the application to the Tribunal could be made. The applicant was invited to make any comments on whether he had made a valid application by 23 May 2017. The applicant did not respond to this invitation. The Tribunal decided it did not have jurisdiction in the matter on the basis that the prescribed 21 day period within which the application to the Tribunal could be made expired on 18 April 2017, two days prior to when it was, in fact, lodged with the Tribunal. The Tribunal notified the applicant of its decision by way of letter dated 5 June 2017.

Federal Circuit Court

10    On 3 July 2017, the applicant filed an application in the Federal Circuit Court, seeking an order that the respondents show cause why a remedy should not be granted following judicial review of the Tribunal’s decision. On 5 July 2018, the Minister filed an application in a case seeking summary judgment.

11    On 13 August 2018, the primary judge heard the application in a case and gave judgment that same day.

12    The primary judge began by setting out (from J[3]-[7]) the legislative provisions and case law applicable to summary dismissal applications, referring in particular to Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (per Perry J).

13    The primary judge then moved to state (from J[8]-[12]) the applicable legislative provisions with respect to the Tribunal’s jurisdiction to conduct reviews of Part 5-reviewable decisions and the notification of decisions to grant or refuse a visa.

14    At J[14]-[15], the primary judge found that by virtue of the combined operation of ss 494B and 494C of the Migration Act, the applicant was taken to have been notified of the refusal of his visa by the delegate on 24 March 2017. Noting that 17 April 2017 was a public holiday (Easter Monday), his Honour found that the last day for the applicant to make his application to the Tribunal was 18 April 2017.

15    At J[17], the primary judge set out the applicant’s grounds of review:

1.    The Tribunal failed to exercise its jurisdiction:

It was error for the Tribunal to assess the application without allowing applicant to present his arguments.

2.    My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

3.    The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.

16    The primary judge observed (at J[18]-[21]) that these grounds failed to engage with the basis of the Tribunal’s decision and referred to the evidence adduced by the Minister (specifically, Ms Ingram’s affidavit) which satisfied his Honour that the applicant was notified on 24 March 2017 that his visa application had been refused and that, because his application was not made to the Tribunal until 20 April 2017, it was made out of time.

17    It being plain to the primary judge that the application had no reasonable prospects of success, the primary judge ordered the applicant’s application be dismissed pursuant to r 13.10(a) of the FCC Rules, with costs in favour of the first respondent fixed in the amount of $4,562.

Application to this court

18    On 27 August 2018, the applicant lodged an application for leave to appeal from the judgment of the Federal Circuit Court, with a supporting affidavit, such application being taken as filed on 31 August 2018. The grounds contained in the application for leave to appeal are (as written):

1.    The Hon. Judge failed that the Tribunal constructively failed to exercise its jurisdiction in arriving its decision.

2.    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.

19    In the draft notice of appeal which accompanies the application for leave to appeal, the grounds of appeal are (as written):

1.    The Federal Judge failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

2.    The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

20    The applicant’s supporting affidavit made 21 August 2018 states (as written):

1.     I am an Indian Citizen applied for medical visa.

2.    The Delegate of the minister refused to grant my visa. I applied for review in the Administrative Appeals Tribunal, but the member of the Tribunal affirmed the delegate decision.

3.    I filed for judicial review application before the Federal Circuit. The Honourable Judge dismissed my application on motion date. I was not represented by the any solicitor or barrister . .

4.     I require leave to appeal against the Federal Judge order

21    The Minister filed written submissions opposing the application for leave to appeal and appeared by his legal representative. The applicant did not file written submissions and appeared in person at the hearing. The Court was assisted by an interpreter.

22    As the first respondent has pointed out, the application for leave to appeal seeks an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth). I accept the first respondent’s submission that such an order is unnecessary, as the application was filed within 14 days of the date of decision of the Federal Circuit Court.

23    The applicant made no submissions at the hearing save to say that he has tuberculosis and is still undergoing treatment at the hospital.

Consideration

24    The decision of the Federal Circuit Court was made pursuant to r 13.l0 of the FCC Rules. It was therefore interlocutory in nature and leave to appeal is required: SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88.

25    The Court has a general discretion to consider whether leave to appeal should be granted. Leave will generally not be granted unless the decision from which appeal is sought is attended with sufficient doubt to warrant its reconsideration and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

26    I am satisfied that leave to appeal should not be granted as any appeal is doomed to fail.

27    The grounds of the application for leave to appeal and the draft notice of appeal are unparticularised and the applicant offered no explanation of them. His only submission went to the merit of his medical treatment visa.

28    The primary judge was plainly right to find that the application to the Tribunal was made out of time for the reasons that his Honour gave. The Tribunal had no power to extend time in which to entertain the applicant’s application for review of the delegate’s decision to refuse the medical treatment visa: see the Full Court’s decision in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228.

29    Further, I accept the Minister’s submission that no substantial injustice will ensue from refusing leave to appeal because the applicant’s application for a medical treatment visa made on 24 March 2017 could not be successful, given that it was plainly made more than 28 days after the applicant’s last substantive visa expired on 31 August 2009. As noted by the Full Court in Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [1], the requirement that an application be lodged within 28 days of the applicant ceasing to hold a relevant visa was removed with effect from 1 July 2017. Clause 602.213 of Sch 2 to the Migration Regulations was amended with effect on 1 July 2017 by Sch 3 to the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth). Clauses 3 and 4 of that Schedule repealed cl 602.213(5) and so removed the requirement that a visa applicant satisfy cl 3001 of Sch 3 to the Migration Regulations, such that medical treatment visa applications no longer needed to be made within 28 days of the “relevant day”. However, the relevant transitional provision in Sch 12 of the Migration Legislation Amendment (2017 Measures No 3) Regulations provides that the Migration Regulations, as amended, only affect applications for a medical treatment visa made on or after 1 July 2017.

Conclusion

30    The application for leave to appeal should be dismissed with costs.

Associate:

Dated:    4 March 2019