Patel v Minister for Immigration and Border Protection

Federal Court of Australia|2019-03-01|Before: Middleton J

The application for leave to appeal be dismissed.
The applicant pay the first respondent's costs in the sum of $1,756.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 On 1 March 2019, the Court ordered that the application for leave to appeal be dismissed and that the applicant pay the first respondent's costs in the sum of $1,756.00.. These are the reasons for those orders. 2 In the proceeding before me the applicant seeks leave to appeal from an interlocutory judgment of the Federal Circuit Court (the 'FCC') of 28 June 2018 published as Patel v Minister for Immigration & Anor [2018] FCCA 1871, in which the primary judge dismissed, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (the 'FCC Rules'), the applicant's application for judicial review of a decision of the second respondent (the 'Tribunal'). By that decision, the Tribunal found that it did not have jurisdiction to review the decision of a delegate of the first respondent (the 'Minister') to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (the 'visa').

BACKGROUND 3 The applicant applied for the visa on 5 April 2017. On 10 April 2017, a delegate of the Minister refused to grant the visa, as he was not satisfied that the applicant met the time of application requirements, in particular cl 602.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the 'Regulations'), as the applicant's last substantive visa had ended more than 28 days prior to the date of her application. The applicant was notified of that decision by letter, dispatched by email, on 10 April 2017. 4 On 19 May 2017, the applicant applied to the Tribunal for review of the Minister's decision. On 23 May 2017 the Tribunal invited the applicant to comment on the validity of her application for review, but she did not do so. 5 On 13 June 2017 the Tribunal found it had no jurisdiction to review the Minister's decision. The Tribunal found that the applicant was properly notified of the decision in accordance with the statutory requirements. The Tribunal found that the applicant was deemed to have been notified of the decision on 10 April 2017, and the prescribed period in which the applicant could have made an application to the Tribunal ended on 1 May 2017. The Tribunal concluded that as the application for review was not lodged with the Tribunal until 19 May 2017, it was out of time and that the Tribunal did not have jurisdiction to review the matter.

PROCEEDINGS BELOW 6 On 26 June 2017, the applicant filed an application for judicial review in the FCC, contending that the Tribunal: (1) failed to exercise its jurisdiction by not allowing her to appear to present her arguments; (2) did not comply with s 424A of the Migration Act 1958 (Cth) (the 'Act') by making any other attempt to contact her; and (3) erred by misinforming itself as to the true nature of the applicant's evidence and incorrectly dealing with her application. 7 On 28 June 2018, the primary judge dismissed the applicant's application. 8 The primary judge noted that, when read together, s 347(1)(b)(i) of the Act and reg 4.101A of the Regulations provide that a Pt 5 reviewable decision, covered by s 338(2) of the Act, must be made by the end of 21 days after the day on which notice of the decision is received. The primary judge held that it was open to the Tribunal to conclude as it did that the Minister's decision was sent to the applicant by email, and that she was deemed to have received it (pursuant to s 494C(5) of the Act) at the end of the day on which the document was transmitted. 9 The primary judge accepted the Minister's submission that the Tribunal's incorrect reference to reg 2.55 of the Regulations rather than s 494C(5) of the Act was immaterial. 10 Citing SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [17], the primary judge found that the Tribunal had correctly concluded that the application had been received outside of the 21 day statutory time limit, and accordingly that the Tribunal did not have jurisdiction to conduct the review. 11 The primary judge noted that, where the Tribunal does not have jurisdiction, it is not required to comply with s 359A of the Act (the Pt 5 equivalent to s 424A, referred to by the applicant in her second ground), and in any event, the Tribunal gave clear particulars to the applicant sufficient to discharge any potential obligation under s 359A of the Act in its communication to the applicant on 23 May 2017. 12 Accordingly, the primary judge concluded that the applicant's grounds of review were not arguable, and dismissed the application pursuant to r 44.12 of the FCC Rules.

PRESENT PROCEEDINGS 13 On 12 July 2018, the applicant applied to this Court for leave to appeal on the following grounds (without amendment): The Hon Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the review Application. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT. 14 As the application before the FCC was dismissed on a show cause basis under r 44.12(1)(a) of the FCC Rules, and as such dismissals are interlocutory (see r 44.12(2) of the FCC Rules), the applicant is required to apply for leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

CONSIDERATION 15 The appellant's proposed grounds of review have no prospect of success. 16 As to the first ground of review, the procedural fairness requirements of Division 5 of Part 5 of the Act only apply where the Tribunal has jurisdiction to conduct the review, and the primary judge did not err in her conclusion to this effect. 17 The recent decision of the Full Court of this Court in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 supports the view taken by the primary judge, though I note that it was decided after her Honour published her reasons for judgment in the court below. 18 As to the second ground of review, the only error identified and raised with the Federal Circuit Court was the Tribunal's incorrect reference to reg 2.55, rather than section 494C of the Act, which was in any case dealt with by the primary judge at [16] of her reasons. As the primary judge found, there is no relevant or material difference between the two provisions as they both contain the same time limits and deeming provisions. Accordingly, the error was immaterial. 19 Aside from this immaterial error, the primary judge's decision is otherwise correct, and her Honour was right to find that there was no arguable case for the relief claimed as the Tribunal had no jurisdiction.

CONCLUSION 20 As there is no merit in the proposed appeal, the application should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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