ABDULLAH v Minister for Immigration

[2017] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDULLAH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2122

Catchwords:
MIGRATION – application for a Constitutional writ – Medical Treatment (Visitor) (Class UB) visa application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.602.212, 602.213 of sch.2, sch.3
Federal Circuit Court Rules 2001, r.44.12

Applicant: SAFWAN ABDULLAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 387 of 2017

Judgment of: Judge Street

Hearing date: 4 September 2017

Date of Last Submission: 4 September 2017

Delivered at: Sydney

Delivered on: 4 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr T Shaw

Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 387 of 2017

SAFWAN ABDULLAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 January 2017, affirming a decision of the delegate not the grant the applicant a Medical Treatment (Visitor) (Class UB) visa. 

2. The applicant is a citizen of Malaysia and arrived in Australia on 15 December 2012 on an electronic visitor visa (UD 976) which ceased on 15 March 2013. The applicant has not held a substantive visa since that time. On 25 July 2016, the applicant applied for a medical visa. On 29 July 2016, the delegate refused that application, finding that the applicant failed to meet the criteria for the grant of a visa.

3. On 16 August 2016, the applicant applied for review. The Tribunal invited the applicant to attend a hearing on 4 January 2017. The applicant attended on that date to give evidence and present arguments.  The Tribunal in its decision identified the applicant’s background and the application for the visa. The Tribunal found that the applicant had made a valid application for the relevant visa and within the relevant time period. The Tribunal identified the requirements for a subclass 602 medical visa. 

4. The Tribunal identified the requirements of cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and that it relevantly requires the applicant at the time of the substantive temporary visa of a specified type or if he did not hold a substantive visa and is medically unfit to depart Australia as required by cl.602.212(6) of the Regulations additional requirements are met. The Tribunal noted the last substantive visa must not be a particular type and that the criteria of visa Schedule 3 of the Regulations are met.

5. The Tribunal found that in the present case the applicant did not meet cl.602.212(6) of the Regulations and did not hold a substantive temporary visa at the time of application, and that the visa held was not a subclass 403 or 426 visa. 

6. The Tribunal found that the applicant did not meet cl.602.212(6) of the Regulations and that the last substantive visa ceased on 15 March 2013. In these circumstances, the Tribunal found that the applicant had not meet the schedule 3 criteria which required the application for a visa to have been lodged within 28 days of the relevant day. The relevant day was 28 days after 15 March 2013. The medical visa application was not made until 25 July 2016. Accordingly, the Tribunal found the applicant had not made the application within 28 days of the relevant day and that criterion 3001 was not satisfied. It was in those circumstances the Tribunal found that the applicant failed to meet the criteria under cl.602.213 of the Regulations and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows: 

   1. I am sick and I think the AAT member failed to fully understand my health situation.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision is affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair it will be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application will be dismissed with costs. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table the applicant complained that he was not told anything about the law at the time that he applied for the visa, and that he had wasted his time and money. The applicant also referred to the proceedings before the Tribunal being relatively short and that he was told he did not qualify for the medical treatment visa. The applicant asserted from the bar table that that was unfair and he would like to have the decision reviewed.

6. The Court explained to the applicant it does not have the power to review the merits and that this Court is confined to considering whether the Tribunal’s decision is one that accords with the statutory requirements and whether the Tribunal complied with requirements of procedural fairness.

7. On the face of the material before the Court, the Tribunal complied with its statutory obligations under s 425 of the Act. On the face of the material before the Court, the Tribunal complied with its statutory requirements in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. 

8. It was not the role of the Tribunal or the Department to advise the applicant in relation to the seeking of further visas, and the applicant’s complaint about being told something that was wrong about whether he should apply for a medical visa does not give rise to any relevant legal error. The proposition that the applicant has wasted his time and money is a surprising allegation in circumstances where on the face of the material before the Court, there was no proper basis for the applicant to apply for a medical visa and there was no proper basis for the applicant to apply for review of the delegate’s decision. It is the applicant that on one view has wasted time and money of the Tribunal and the Court.

9. This is the type of application that should have been the subject of an application under r.44.12 of the Federal Circuit Court Rules 2001. The proposition that the refusal of the applicant’s application was unfair is without substance. The Tribunal was required to apply the relevant criteria and there was no basis in the circumstances of the present case where the applicant’s substantive visa ceased on 15 December 2013 whereby the applicant could possibly succeed. 

10. In relation to the ground identified in the application, an assertion that the applicant is sick was utterly unsupported by any evidence before the Court and does not give rise to any relevant legal error by the Tribunal. The proposition that the Tribunal member failed to understand the applicant’s situation does not reflect any understanding by the applicant of the criteria that he had to meet in order to obtain the relevant visa. There was no misunderstanding by the Tribunal of the statutory criteria and the applicant’s reference to his health situation is seeking to invite the Court to engage in a merits review which the Court has no power to do.

11. Neither the Court nor the Tribunal could grant a visa on compassionate grounds. No jurisdictional error is made out by ground 1 in the application.  Nothing said by the applicant from the bar table makes out any relevant legal error. 

12. Accordingly, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017