Federal circuit court
8 On 30 August 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.
9 On 4 July 2018, the first respondent filed an application in a case, seeking an order that the applicant's application for judicial review be dismissed pursuant to r 13.10(a) of the FCC Rules. The first respondent's application was supported by two affidavits (both of which are in evidence in this proceeding including Ms Eggleton's affidavit).
10 On 8 August 2018, the primary judge heard the application in a case and gave judgment that same day.
11 The primary judge noted from the outset (at J[2]) that r 13.10(a) of the FCC Rules empowered the Court to order that proceeding be dismissed generally if the Court is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding.
12 Canvassing the relevant factual and procedural background at J[4]-[9], the primary judge found (at J[6]) that the applicant did receive notification of the delegate's decision on 24 March 2017, on the basis of the applicant's acceptance of that fact. His Honour noted that in any event the Eggleton Affidavit was sufficient evidence to support that finding.
13 At J[10], 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 her arguments.
2. 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.
3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
14 At J[12], the primary judge noted that the question arising on the application is whether there are no reasonable prospects of the applicant establishing that the Tribunal was wrong in concluding it had no jurisdiction to consider the applicant's application for review.
15 At J[13]-[15], the legislative scheme for determining when an application for review of a delegate's decision is "properly made" so that the Tribunal would come under an obligation to review that decision under s 348(1) of the Migration Act was set out as follows (as written):
13. The starting point to answering those questions are provisions in the Act and Regulations dealing with applications for review of decisions made by the Minister refusing to grant visas. The starting point is the nature of the delegate's decision not to grant the applicant the Medical Treatment visa. That decision is a "Part 5-reviewable decision" as that expression is defined in s.338 of the Act. That means the Tribunal would have come under an obligation to review that decision under s.348(1) of the Act if the application the applicant made to the Tribunal on 20 April 2017 could be said to have been "properly made under" s.347 of the Act.
14. An essential element of an application being "properly made under" s.347 of the Act is the requirement provided for by s.347(1)(b) of the Act, namely, that an application for review of a Part 5-reviewable decision must be made within the "prescribed period". The period for making an application for review of the class of Part 5-reviewable decision of which the decision of the delegate before me is a member has been prescribed by reg.4.10(1)(a) of the Regulations: it is the period that "starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received". The word "receives notice of the decision" directs attention to s.66(1) of the Act, which provides that when the Minister grants or refuses to grant a visa he or she is to notify the applicant of the decision "in the prescribed way".
15. Regulation 2.16(1) of the Regulations provides that for the purposes of s.66(1) of the Act, reg.2.16 of the Regulations sets out the way of notifying "a person of a decision to grant or refuse to grant a visa". Regulation 2.16(3) provides that the Minister "must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act." One of the methods specified in s.494B is that specified in s.494B(5) of the Act, which permits the Minister to give a document by transmitting it by, among other things, email. Under s.494C(5) of the Act, where a document is given by transmitting the document by email, the document is taken to have been received at the end of the day on which the document is transmitted.
16 The primary judge found that the applicant was, pursuant to s 494C(5) of the Migration Act, taken to have been notified of the delegate's decision on 24 March 2017, when it was received by the applicant at her email address. The corollary of this finding was that the applicant was required to lodge her application to the Tribunal by 18 April 2017, if she were to invoke the Tribunal's jurisdiction to review the delegate's decision, having regard to the fact that 14 and 17 April 2017 were public holidays. The primary judge was therefore satisfied that the Tribunal did not have jurisdiction to deal with her application for review: J[16]-[19].
17 Turning to the applicant's grounds of review, the primary judge found:
(1) The first ground could be taken as a complaint that the Tribunal ought to have exercised its jurisdiction and that the Tribunal was wrong in concluding it did not have jurisdiction and it was not arguable that this was so: J[20].
(2) With regard to the second ground, the primary judge found that it seemed to claim that the Tribunal failed to take into account or failed to correctly understand the applicant's evidence and otherwise incorrectly dealt with the application and that this could be taken as a complaint similar to that raised in the first ground but it was not arguable that the Tribunal was wrong: J[21].
(3) The primary judge found that the third ground seemed to claim that the Tribunal's decision was based on a satisfaction of matters arrived at not in accordance with the Migration Act and that claim was not arguable. That was because whether or not the Tribunal had jurisdiction was not a matter that was to be determined by the Tribunal's satisfaction. Whether or not the Tribunal had jurisdiction is a jurisdictional fact which is a fact open for the Court to determine, and for reasons previously given it was not arguable that the Tribunal had jurisdiction.
18 The primary judge acknowledged (at J[23]) the submission made by the first respondent's solicitor in the alternative that the applicant would have no reasonable prospects of succeeding in any event because on the material before the Court it was beyond argument that the applicant could not satisfy the criteria for the granting of a medical treatment visa. However, his Honour did not consider it necessary to deal with this submission given his conclusions with respect to the Tribunal's jurisdiction.
19 Having found the applicant had no reasonable prospect of successfully prosecuting her application, the primary judge ordered the applicant's application for review 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 $3,667.