FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 355

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The applicant originally filed a notice of appeal on 18 April 2019 in respect of the decision of the Federal Circuit Court of 1 April 2019 in Kumar v Minister for Home Affairs [2019] FCCA 1505. In that decision the primary Judge refused to grant an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (Migration Act) extending the time for Mr Kumar to file his judicial review application in the Federal Circuit Court.

2    Section 476A(3)(a) of the Migration Act provides that an appeal may not be brought from a judgment of the Federal Circuit Court making, or refusing to make, an order under s 477(2).

3    On 7 November 2019, the parties came before me for a first case management hearing. At that hearing, and in circumstances of an appeal being incompetent, both Mr Kumar and the Minister consented to the purported notice of appeal being heard and determined as if it were an application made pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). On that day I also granted Mr Kumar a five month adjournment of the hearing to allow him an opportunity to seek legal advice.

4    For Mr Kumar to be successful under s 39B of the Judiciary Act he is required to establish that a writ of mandamus or prohibition will issue, or that he is entitled to an injunction, because of error affecting the decision of the primary Judge. As was made clear by the decision of the High Court in Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 at [4], the central issue presented by reliance upon s 39B for an order quashing the primary Judge’s decision was not merely whether there had been an error of fact or law by his Honour, but whether there had been error by his Honour in the exercise of powers which amounted to jurisdictional error.

5    Further, as the Full Court explained in DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454; [2018] FCAFC 95:

42.    In addition, certiorari will lie for a non-jurisdictional error of law on the face of the record: Kirk [v Industrial Court of New South Wales [2010] HCA 1] at [78]-[90]. As developed in the appellant’s submissions, it is apparent that this is the basis on which the appellant seeks a writ of certiorari in FCAFC Ground 6. The availability of certiorari for non-jurisdictional error as a “stand alone” remedy on an application in the Federal Court’s original jurisdiction under s 39B(1) of the Judiciary Act was confirmed in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165…

(Emphasis in original.)

6    It is not in dispute that the Federal Court has original jurisdiction under s 39B of the Judiciary Act to entertain an application for judicial review of a decision of the Federal Circuit Court for the purposes of an application for certiorari (Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; [2013] FCAFC 139) however I note that the primary Judge’s reasons do not comprise part of the record for the purposes of such an application pursuant to s 39B (DMI16 at [43] et seq).

7    Although Mr Kumar does not specify, to the extent that he seeks an order that the decision of the primary Judge be quashed and the matter remitted, I understand that he seeks an order for certiorari.

Background

8    On 7 December 2017 Mr Kumar was granted a Temporary Safe Haven Visa (Class UJ). That visa ceased on 14 December 2017. It appears that he is currently in Australia without a valid visa.

9    On 22 June 2018, the Minister received Mr Kumar’s application for a Medical Treatment (subclass 602) visa (medical treatment visa) dated 18 June 2018.

10    On 27 June 2018, a delegate of the Minister determined that Mr Kumar’s application for the medical treatment visa was invalid in light of s 91K of the Migration Act. In the course of that determination the delegate wrote a letter to the applicant stating as follows:

Section 91K     Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

Invalid applications cannot be considered. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.

Review Rights

There is no right of merits review of the assessment that an application is invalid.

…

11    Relevantly, sections 91J and 91K of the Migration Act provide:

91J Non‑citizens to whom this Subdivision applies

(1)    This Subdivision applies to a non‑citizen in Australia at a particular time if, at that time, the non‑citizen:

(a) holds a temporary safe haven visa; or

(b) has not left Australia since ceasing to hold a temporary safe haven visa.

(2)    This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.

Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.

91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

(Emphasis added.)

12    Section 91L of the Migration Act is not relevant in this case.

Proceedings in the federal circuit Court

13    On 22 August 2018, Mr Kumar sought judicial review of the decision of the delegate in the Federal Circuit Court. The application was filed out of time. The sole ground on which Mr Kumar relied was:

1.    I don’t find the right person to help me to do the application. That’s I can’t making in time.

14    In the application Mr Kumar further stated:

My medical treatment visa application determined as an invalid application. I will provide more details in my amended application.

As a truthful witness, I will provide with the affidavit.

The Department of Home Affairs made a jurisdictional error when it discarded.

Particular:

In the decision the Department of Home Affair found there was section 91K and 91L. My application was not a valid application.

(Emphasis in original.)

15    At the hearing, the primary Judge treated the application before the Court as an application for extension of time.

16    The primary Judge summarised the procedural history of the matter, noting that when Mr Kumar came before a Registrar on 10 October 2018 he was given until 21 December 2018 to file and serve an amended application, and a further 28 days prior to the hearing to file and serve written submissions. The Registrar adjourned the hearing until 25 March 2019.

17    The application was adjourned again, being heard on 1 April 2019.

18    Mr Kumar did not file any amended application nor did he file any material or submissions.

19    At the hearing before his Honour, Mr Kumar sought a brief adjournment to read the Minister’s submissions with the aid of an interpreter. The primary Judge granted an adjournment for that purpose.

20    His Honour observed:

7.    … The combined effect of s 91J and s 91K of the Migration Act 1958 (Cth) (“the Act”) is that if an Applicant applies for a visa and, at the time, they have not left Australia since ceasing to hold a temporary Safe Haven visa, then that application is not a valid application.

21    The primary Judge continued:

9.    The Applicant has failed to demonstrate how there has been an error. All he has said is that he cannot afford a lawyer to help him with this. With all due respect to the Applicant, no lawyer could help him in these circumstances where the legislation is clear. There would be absolutely no merit in the application at all. This is an application for extension of time and the Court does look at what the excuse is for the late filing, what prejudice there would be to the Respondent, and then, thirdly, the merits of the application.

10.    Whilst I do not accept the excuse that the Applicant has proffered as to why the matter was late; that is, that he could not get anyone to help him, this application has really been fought upon the merits of the substantive application.

11.    As I have previously said, there are no merits to the substantive application. Therefore, I refuse the application to extend the time in which the Applicant can file the application and, in all other respects, I dismiss the application with costs in the sum of $3737.

proceedings in the federal COURT

22    In his application before me Mr Kumar relied on the following grounds:

1.    The judge of the Federal Circuit Court in his honourable judgement delivered on the April 01, 2019 failed error of law and relief under the judiciary Act. He failed to find the reasons for the Medical Treatment Visa.

2.    Besides, the Minister for Home Affairs did not follow the proper procedure as required by the Act in arriving its decision in deciding my medical treatment visa judicial review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

23    Materially, on 5 November 2019 the applicant filed submissions in support of his application to the following effect:

    He was not represented by a lawyer but he prepared submissions with the assistance of a friend.

    He sought to obtain pro bono legal representation, but was unsuccessful.

    The decision of the Minister’s delegate was flawed.

24    At the hearing on 2 March 2020 Mr Kumar handed up supplementary submissions (which I ordered to be filed). In those supplementary submissions, Mr Kumar submitted in summary:

    He was self-represented and was unable to obtain legal representation due to financial constraints.

    He had provided documentary evidence in support of his medical treatment visa application.

    The Court has jurisdiction to review the delegate’s decision and the question for the Court to determine was whether the application for a medical treatment visa was an invalid application.

    The Minister’s submissions were not relevant because Mr Kumar was not applying for a protection visa.

    The matter should be remitted to the Minister for redetermination according to law.

25    At the hearing, I asked Mr Kumar if he wished to say anything further in support of the application. Mr Kumar was content to rely upon his written submissions.

26    In my view there is no merit to the application.

27    The critical issues before the primary Judge were clearly that Mr Kumar did not have a valid visa, and that he was therefore statute-barred from applying for the medical treatment visa he sought. Section 46(1) of the Migration Act provides that “an application for a visa is valid if, and only if”:

(e)     it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

…

(v)     section 91K (temporary safe haven visas);

…

28    In Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47, the Full Court stated at [26] to [27]:

26.     The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the court and we so find.

27.     The consequence is that the validity of the visa application is a question which the court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the court to resolve any controversy as to that question. We accept the appellant Minister’s submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

(Emphasis added.)

29     Subdivision AJ of Div 3 of Pt 2 of the Migration Act relates to temporary safe haven visas. The reason for this subdivision is set out in s 91H, which states:

This Subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.

(Emphasis added.)

30    In summary:

    While there is no evidence before the Court that Mr Kumar was an unauthorised maritime arrival, he is a non-citizen. In the proceedings before the Federal Circuit Court, the Minister annexed a document within the affidavit of Jennifer Louise Strugnell which indicated that the applicant was granted a temporary safe haven visa for a week (between 7 December 2017 and 14 December 2017) and that the applicant has not left Australia since that visa ceased.

    Accordingly, it is clear that Mr Kumar had previously held a temporary safe haven visa, and had not left Australia since ceasing to hold that temporary safe haven visa. He was subject to Subdiv AJ of Div 3 of Pt 2 of the Migration Act.

    The primary Judge was clearly correct to observe that Mr Kumar’s application for a medical treatment visa was invalid in light of the combined effect of ss 91J and 91K of the Migration Act.

    It was plainly open to the primary Judge to find that the applicant had failed to demonstrate how there had been any error in the delegate’s decision and that there was “absolutely no merit in the application at all”.

    No error was apparent in the assessment of the primary Judge that the applicant’s proposed substantive application had no prospect of success, such that an order for an extension of time to file his application for review was not warranted.

    To the extent that Mr Kumar claimed error on the part of the Minister’s delegate, this did not constitute an allegation of error on the part of the primary Judge. The application of Mr Kumar relates to the decision of the primary Judge, not the Minister’s delegate.

    In any event, in the circumstances the delegate was clearly correct to find that Mr Kumar’s application for a medical treatment visa was invalid under the Migration Act. No errors in the delegate’s decision are apparent.

    To the extent that Mr Kumar contended that the delegate failed to follow “the proper procedure as required by the Act”, he did not particularise which procedures were not followed. I am not satisfied that the delegate failed to follow any proper procedures under the Migration Act.

31    As the applicant met the relevant criteria set out in s 91H of the Act, he was not allowed to apply for a visa other than another temporary safe haven visa.

32    In my view, the primary Judge did not err in his Honour’s finding that the delegate’s decision was not made properly or in accordance with law. There is no merit in ground two.

Conclusion

33    Very clearly, there is no error of law on the face of the record of decision of the primary Judge.

34    The appropriate order is that the application filed on 22 April 2019 be dismissed. The applicant is to pay the Minister’s costs, to be taxed if not otherwise agreed.

Associate:

Dated:    18 March 2020