FEDERAL COURT OF AUSTRALIA Patel v Minister for Home Affairs [2019] FCA 280 Appeal from: Application for leave to appeal: Patel v Minister for Immigration & Anor [2018] FCCA 2337 File number: NSD 1522 of 2018 Judge: FARRELL J Date of judgment: 4 March 2019 Catchwords: MIGRATION – Application for leave to appeal a decision of the Federal Circuit Court of Australia summarily dismissing application for judicial review of a decision of the Administrative Appeals Tribunal – applicant lodged application for review of a Part 5-reviewable decision to Tribunal outside prescribed 21 day time period – Tribunal found it did not have jurisdiction – whether Tribunal failed to exercise its jurisdiction – no power for Tribunal to extend time in which to entertain the applicant's application – Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 followed – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.10 Federal Court Rules 2011 (Cth) r 35.13 Migration Act 1958 (Cth) ss 348(1) and 494C Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth) Schs 3 and 12 Migration Regulations 1994 (Cth) Schs 2 and 3 Cases cited: Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Patel v Minister for Immigration & Anor [2018] FCCA 2337 SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88 Date of hearing: 4 March 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Moss of Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court save as to costs ORDERS NSD 1522 of 2018 BETWEEN: SUMITRA NILESH PATEL Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 4 March 2019 THE COURT ORDERS THAT: 1. The application for leave to appeal is dismissed. 2. The applicant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FARRELL J 1 This is an application for leave to appeal a decision of the Federal Circuit Court of Australia made on 8 August 2018: Patel v Minister for Immigration & Anor [2018] FCCA 2337. Pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the primary judge summarily dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, made on 3 August 2017, to affirm a decision of a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (medical treatment visa). 2 Having regard to the similarity of facts and issues, I have heard this application consecutively with proceeding NSD1607 of 2018 Nileshkumar Prahaladbhai Patel v Minister for Immigration and Border Protection & Anor. The applicant is Mr Patel's wife. Background 3 The applicant claims to be a citizen of India. She last held a substantive visa on 31 August 2009, having entered Australia on a tourist visa with her husband. 4 On 13 March 2017, the applicant lodged an application for a medical treatment visa. This application was refused by the delegate on 24 March 2017 on the basis that the applicant did not satisfy cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) and cl 3001 of Schedule 3 to the Migration Regulations. 5 The primary judge accepted evidence given by Sian Acacia Eggleton by affidavit affirmed on 1 December 2017 that the applicant was advised of the delegate's decision by email sent on 24 March 2017 to the applicant's email address. 6 On 20 April 2017, the applicant applied to the Tribunal for review of the delegate's decision. 7 On 3 August 2017, the Tribunal decided it did not have jurisdiction in the matter on the basis that the prescribed 21 day period within which the application to the Tribunal could be made expired on 18 April 2017, two days prior to when it was, in fact, lodged with the Tribunal. The evidence before the Tribunal was that the applicant had been notified on the delegate's decision on 24 March 2017 by email, such a method of communication being nominated as acceptable by the applicant on her application form. The effect of this is that the prescribed 21 day period began to run on 24 March 2017. The Tribunal noted the applicant's submission that she is unrepresented and that her matter is complex. The Tribunal notified the applicant of its decision by way of letter dated 4 August 2017. 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. Application to this court 20 On 22 August 2018, the applicant filed an application for leave to appeal from the judgment of the Federal Circuit Court, with a supporting affidavit. The grounds contained in the application for leave to appeal are (as written): 1. The Hon. Judge failed that the Tribunal constructively failed to exercise its jurisdiction in arriving its decision. 2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT. 21 In the draft notice of appeal which accompanies the application for leave to appeal, the grounds of appeal are (as written): 1. The Hon. Judge failed to consider that the Tribunal made the mistake not to grant my visa despite I meet the criteria of the subclass 602 visa. 2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 22 The applicant's supporting affidavit, made 20 August 2018, states: 1. I am an Indian Citizen applied for subclass 602 visa. 2. The Delegate of the minister for Border Protection refused to grant my visa. I applied for review in the Administrative Appeals Tribunal, but the member of the Tribunal affirmed the delegate decision. 3. I filed for judicial review application before the Federal Circuit Court. The Honourable Judge dismissed my application on motion date. I was not represented by the any solicitor or barrister. 4. I require leave to appeal against the Federal Judge order. 23 The first respondent filed written submissions opposing the application for leave to appeal and appeared by his legal representative. The applicant did not file written submissions and appeared in person at the hearing. The Court was assisted by an interpreter. 24 As the first respondent has pointed out, the application for leave to appeal seeks an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth). I accept the first respondent's submission that such an order is unnecessary, as the application was filed within 14 days of the date of decision of the Federal Circuit Court. 25 The only submission made by the applicant was that the Tribunal failed to take notice that she was ill, but gave its decision on its own authority. Consideration 26 The decision of the Federal Circuit Court was made pursuant to r 13.10 of the FCC Rules. It was therefore interlocutory in nature and leave to appeal is required: SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88. 27 The Court has a general discretion to consider whether leave to appeal should be granted. Leave will generally not be granted unless the decision from which appeal is sought is attended with sufficient doubt to warrant its reconsideration and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 28 I am satisfied that leave to appeal should not be granted as any appeal on the proposed grounds is doomed to fail. 29 The grounds of the application for leave to appeal and the draft notice of appeal are unparticularised and the applicant offered no explanation of them. The applicant's only submission went to a factual matter which the Tribunal would only be able to have considered if it had jurisdiction to entertain the application had it been lodged within the prescribed 21 day period. 30 The primary judge is plainly right in his findings at J[13]-[19] for the reasons that his Honour gave. The Tribunal had no power to extend time in which to entertain the applicant's application for review of the delegate's decision to refuse the medical treatment visa: see the Full Court's decision in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228. 31 Further, I accept the Minister's submission that no substantial injustice will ensue from refusing leave to appeal because the application for a medical treatment visa was made on 24 March 2017 and could not be successful because it was lodged more than 28 days after the applicant's last substantive visa expired on 31 August 2009. As noted by the Full Court in Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [1], the requirement that an application be lodged within 28 days of the applicant ceasing to hold a relevant visa was removed with effect from 1 July 2017. Clause 602.213 of Sch 2 to the Migration Regulations was amended with effect on 1 July 2017 by Sch 3 to the Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth). Clauses 3 and 4 of that Schedule repealed cl 602.213(5) and so removed the requirement that a visa applicant satisfy cl 3001 of Sch 3 to the Migration Regulations, such that medical treatment visa applications no longer needed to be made within 28 days of the "relevant day". However, the relevant transitional provision in Sch 12 of the Migration Legislation Amendment (2017 Measures No 3) Regulations provides that the Migration Regulations, as amended, only affect applications for a medical treatment visa made on or after 1 July 2017. Conclusion 32 The application for leave to appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 4 March 2019