Boutros v Minister for Immigration and Border Protection

1. The application for leave to appeal be dismissed.
2. The applicant pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before me is an application for leave to appeal from the judgment of the Federal Circuit Court made on 10 September 2018 dismissing, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) ("FCCR"), the applicant's application for judicial review filed on 20 November 2017 on the basis that it did not disclose any arguable case of jurisdictional error. 2 The principles guiding the determination of applications for leave to appeal were considered by the Full Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [25]-[40]. Generally speaking, leave to appeal may be granted: where the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and substantial injustice would result if leave were refused, supposing the decision to be wrong. 3 The authorities show that the prospects of the applicant's proposed appeal may be an important factor in determining whether or not to grant leave to appeal and that it will not usually be granted if the proposed appeal has no reasonable prospects of success. 4 The applicant was not legally represented before the primary judge or at the hearing of this application. However, his draft notice of appeal identified six proposed grounds of appeal. The proposed grounds of appeal are as follows: 1. His Honour dismissed my case and I have not received the judgment yet. 2. I received the Court Book only on the day of the Court on 10 September 2018. 3. His Honour failed to take into consideration my letter to the Tribunal dated 20 October 2017 in which I said "I appreciate if the Tribunal can put some information in writing to me to respond to as I am unable to attend on Monday." […] 4. The Tribunal failed to accord me natural justice and failed to respond to my letter and the Tribunal failed to consider the compelling circumstances outlined in my letter. 5. The Tribunal refused my application because it was not made within 28 days of the expiry of my substantive visa. 6. His Honour failed to consider the two pending appeals before the Federal Court mentioned in the First Respondent's Submission on point 13. 5 There is no substance to either the first or second of the proposed grounds of appeal. The primary judge's reasons for judgment were delivered orally on 10 September 2018 and later made available after revision by his Honour on 15 November 2018. The Court Book, which was made available to the applicant at the commencement of the hearing before the primary judge, did not contain any material that is said to have caused the applicant any prejudice by reason of him not having received it before then. 6 As to the third of the applicant's proposed grounds of appeal, it is clear that the primary judge had regard to the applicant's letter to the Tribunal dated 20 October 2017. His Honour refers to it specifically at [3] and [13] of his reasons when explaining why the applicant's application to the Tribunal was dealt with on the papers. 7 The allegation underpinning the fourth of the applicant's proposed grounds of appeal is contrary to the primary judge's finding at [4] which is based on the Tribunal's account at [5]-[6] of its reasons describing its contact with the applicant and its decision to accept the applicant's request to have his application for review dealt with on the papers. 8 The fifth and sixth of the applicant's proposed grounds of appeal also lack substance. 9 The Tribunal found that the applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 4 April 2017 which was more than 28 days after 25 November 2007 when his last substantive visa ceased. The Tribunal also found that the last substantive temporary visa held by the respondent was not a subclass 403 visa. The applicant did not contest those findings before the primary judge nor does he contest them in his proposed grounds of appeal. 10 The Tribunal affirmed the decision under review on the basis that the applicant failed to meet the criteria specified in clause 602.213 of Schedule 2 of the Migration Regulations 1994 (Cth) including, relevantly, cl 602.213(3)-(5) of Schedule 2 and cl 3001(1)-(2) of Schedule 3. 11 The two pending appeals referred to in the first respondent's submissions to the primary judge, were the Full Court decisions in Ahmad v Minister for Immigration and Border Protection (No 2) and Zhao v Minister For Immigration & Anor [2018] FCAFC 200, which were delivered after the primary judge gave judgment in this matter. There is no suggestion that either the Minister or the applicant requested the primary judge to adjourn the hearing or defer giving judgment pending determination of those appeals. In any event, the reasons given by the Full Court in those matters only reinforce the conclusion that the Tribunal's decision was correct. 12 Mr Moss, who appeared on behalf of the Minister, drew my attention to two errors in paragraphs 9 and 10 of the Tribunal's reasons for decision. Those paragraphs read as follows: 9. Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specifiesd type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met. 10. In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision. 13 It is apparent that the reference in each of those paragraphs to subclass 426 is an error in that although subclass 426 was referred to in an earlier version of clause 602.213, it was not referred to in that clause in the form it took at the time of the Tribunal's decision. It is apparent that these two errors were of no legal significance and could not justify a finding of jurisdictional error. 14 I am satisfied the primary judge was correct to dismiss the applicant's application for judicial review pursuant to r 44.12 of the FCCR on the basis that the application did not disclose any arguable case of jurisdictional error. In my view the applicant's proposed appeal has no prospects of success and the application for leave to appeal will be dismissed on that basis. 15 The application for leave to appeal is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas .