Syeda v Minister for Home Affairs

1. The application for leave to appeal be dismissed.
2. The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicants have applied for leave to appeal a decision of the Federal Circuit Court of Australia ("FCC") dismissing their applications for judicial review of the decisions of the Administrative Appeals Tribunal ("the Tribunal") and affirming the decisions of the Tribunal refusing to grant them visas. As the applicants are members of the same family group and the visa claims of Mr Mustafa, the husband of Ms Zaman, and Fariza Syeda, their daughter, depend on the outcome of Ms Zaman's visa application, the applications were heard together. 2 Leave to appeal is required because the FCC dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the FCC was not satisfied that the applications raised an arguable case for the relief claimed and, by r 44.12(2), a dismissal under paragraph (1)(a) is interlocutory. 3 For the reasons that follow the applications should be dismissed. 4 Ms Zaman is a citizen of Bangladesh born on 2 October 1977 who arrived in Australia in August 2003 as the holder of a student (TU-574) visa. On 19 June 2017, Ms Zaman applied for a Medical Treatment (Visitor) (class UB) (subclass 602) visa. The criteria for that visa are specified in cl 602.213 of the Migration Regulations 1994 (Cth) ("the Regulations"). At the relevant time, cl 602.213 provided: 602.213 (1) Subclause (2) applies if: (a) the applicant was in Australia at the time of application; and (b) the applicant held a substantive temporary visa at that time; and (c) the requirements described in subclause 602.212(6) are not met in relation to the applicant. (2) The substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. (3) Subclauses (4) and (5) apply if: (a) the applicant was in Australia at the time of application; and (b) the applicant did not hold a substantive temporary visa at that time; and (c) the requirements described in subclause 602.212(6) are not met in relation to the applicant. (4) The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. (5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. 5 Relevantly for the purposes of s 602.213(3)(c), one of the requirements described in subcl 602.212(6) is that the applicant has turned 50. Ms Zaman did not satisfy that requirement at the time and accordingly it was necessary for her to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. 6 Criterion 3001 of Schedule 3 of the Regulations relevantly provided: 3001 (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: … (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully; or… 7 The last substantive visa held by Ms Zaman was a UQ-497 visa which expired on 9 January 2008, which was more than 28 days prior to the date on which she applied for her medical treatment visa. As such, she did not satisfy criterion 3001(1). The consequence was that Ms Zaman was simply not eligible for the visa. As the authorities make clear, there is no discretion to grant such a visa where the eligibility criteria are not met and the visa must be refused: Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [36] (Rares, Davies and Bromwich JJ); Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18] (Perram J). The Tribunal affirmed the decision of the Minister not to grant Ms Zaman a medical visa on the basis that Ms Zaman did not meet the requirements for the grant of the visa. The FCC was correct to conclude that Ms Zaman's application for judicial review of the decision of the Tribunal could not succeed because there was no power to excuse non-compliance with the mandatory requirements for the grant of such a visa. It follows that the FCC was also correct to dismiss the applications made by Mr Mustafa and their daughter. 8 The applicants represented themselves (the daughter by her father as litigation representative). In their application for leave to appeal, they raised three grounds. The first ground was that the primary judge erred by not holding that the respondents did not make jurisdictional error by failing to exercise jurisdiction. The ground is not a proper ground of appeal but, in any event, for the reasons given, the Tribunal decisions were plainly correct and the FCC was plainly correct to dismiss the applications for judicial review. 9 The second ground was that the primary judge erred by not holding that the decision of the Tribunal was infected with a legal error because its decision to refuse an adjournment sought by Ms Zaman was unreasonable. The particulars to this ground were that Ms Zaman provided a medical certificate to the Tribunal and requested an adjournment which the Tribunal refused. The FCC rejected this ground correctly, reasoning that no prejudice was capable of having been caused to Ms Zaman for the hearing not being postponed as the Tribunal was bound to affirm the decision of the delegate of the Minister to refuse her a medical visa because she did not satisfy the eligibility criteria. No error is apparent in the FCC's reasoning. Even if the refusal of an adjournment amounted to a denial of procedural fairness, the breach did not amount to jurisdictional error because an adjournment could not realistically have resulted in a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [38] (Bell, Gageler and Keane JJ). 10 A third ground was relied on which was not raised before the FCC, namely that the primary judge erred by not holding that the Tribunal failed to comply with s 359AA of the Migration Act 1958 (Cth) ("the Act") in that the Tribunal failed to put information to the applicants as required by that section. As the ground was not relied on before the FCC, leave is required to raise it. Leave should be refused as it has no substance either. 11 The relevant information which it is claimed should have been put to the applicant under s 359AA of the Act was that the last substantive visa held by Ms Zaman was a UQ-497 visa which expired on 9 January 2008. Although the applicant relies on s 359AA, the correct provision is s 359A. It provides that: Information and invitation given in writing by Tribunal (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. … 12 As that information was information contained in the delegate's decision, which was provided to the Tribunal by Ms Zaman, section 359A was, accordingly, not enlivened by reason of the exception in s 359A(4)(b), which exempts information that the applicant gave for the purpose of the application for review. 13 As the proposed appeal has no prospects of success, the application for leave to appeal must be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.