AHMAD v Minister for Immigration

[2018] FCCA 1177

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMAD v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1177

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the medical condition and circumstances of the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth), cll.602.212, 602.213, criterion 3001 of sch.3

Cases cited:

Cakau v Minister for Immigration & Border Protection [2017] FCCA 952

Applicant: KHALIL AHMAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2046 of 2017

Judgment of: Judge Smith

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Moss, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2046 of 2017

KHALIL AHMAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant arrived in Australia on 28 March 2012 on a tourist visa that expired on 28 June 2012.  That tourist visa was the applicant’s last substantive visa.  On 5 January 2017, almost five years later, the applicant lodged an application for a medical treatment (class UB) visa.  The criteria for the grant of that visa were discussed by me in the case Cakau v Minister for Immigration & Border Protection [2017] FCCA 952 at [8] to [14]. The relevant form of cl.602.213 of the Migration Regulations 1994 (Cth) was different for the purposes of this application in that the reference in sub-cl.(4) had had removed from it the subclass 426 visa following the commencement of the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) (Amendment Regulation).  I will return to that in due course.

2. On 9 January 2017 a delegate of the Minister of Immigration made a decision to refuse to grant the applicant a medical treatment visa, and the applicant applied to the Administrative Appeals Tribunal for review of that decision. The applicant was invited to, and attended, a hearing conducted by the Tribunal on 31 May 2017. The Tribunal made its decision on 1 June 2017 affirming the decision of the delegate. The Tribunal found that the applicant last held a substantive visa on 28 June 2016 and did not hold a substantive temporary visa at the time of the application. It noted that the last visa held by the applicant was neither a subclass 403 or 426 visa, and as such, the applicant must meet the sch.3 criteria.

3. The Tribunal then turned to consider the sch.3 criteria. It found that the applicant had lodged the current application over six months since he last held a substantive visa. That is clearly wrong as was the finding that the applicant last held a substantive visa on 28 June 2016. Indeed, the reference by the Tribunal at [8] of its reasons to the subclass 426 visa was also wrong as, for the reasons I have explained, that was irrelevant given the time of the application for the visa and the operation of the Amendment Regulation. I will return to the impact of those errors in due course.

4. The Tribunal went on to find that as the application was not made within 28 days of the relevant date it did not satisfy criterion 3001 of sch.3 and so affirmed the decision under review. The applicant now seeks judicial review of the Tribunal’s decision.

5. There are four grounds in his application.  The first is that the Tribunal denied the applicant procedural fairness in failing to give proper consideration to the medical records and evidence presented to the Tribunal supporting his case for a medical visa. 

6. It is true that the Tribunal did not have regard to the medical records.  That is because it did not have to, given that its decision was based upon the finding that the application was made more than 28 days after the relevant day.  That criterion had nothing to do with any medical condition held by the applicant.  The first ground has no merit.

7. The second ground is that the Tribunal misapplied and/or misconstrued cl.602.212(6) of the Regulations and so committed legal error.  That assertion is not explained.  It is not at all clear what the Tribunal thought was required by cl.602.212(6).  At [8] of its reasons, the Tribunal appears, on one view, to consider that that criterion is not met if the applicant did not hold a substantive temporary visa at the time of the application.  However, in my view, the proper reading of the third sentence in [8] does not suggest that the Tribunal thought that. 

8. While it is not clear from the findings of the Tribunal, there is no doubt on the material before it that there was only one conclusion open to the Tribunal.  The applicant’s birth date in his medical treatment visa was given as 12 June 1974.  Therefore, neither at the time of the application nor at the time of the decision was the applicant 50 years old.  One of the requirements in cl.602.212(6) is that the applicant has turned 50. 

9. For that reason, there was no option for the Tribunal other than to find, as it did at [8], that that clause was not satisfied.  Although the Tribunal’s reasons in this respect and in other respects are unsatisfactory, I can see no jurisdictional error in them.  Therefore, the second ground is rejected. 

10. The third ground is that the Tribunal misapplied criterion 3001, in that:

    3.…although I did not hold a substantive visa, I was seeking one because my medical condition had deteriorated after the expiry of my last substantive visa.

11. Criterion 3001 has nothing to do with deterioration of a medical condition, and relevantly to the present circumstances, only deals with the date upon which the application is made and in particular, whether that is made within a particular timeframe after the expiry of the last substantive visa.  This ground has no merit. 

12. The fourth ground is that the Tribunal’s decision is legally unreasonable in the circumstances of the applicant’s medical condition and all the supporting medical evidence showing that the applicant should be granted a medical visa to continue medical treatment in Australia.  As I have explained in ground 1, the applicant’s medical condition was not relevant to the Tribunal’s decision given the reasons for that decision.  Simply put, in the applicant’s circumstances, he was never entitled to the grant of the visa because he had applied outside the time required by criterion 3001 regardless of his medical condition.  For those reasons, none of the grounds in the application is made out.

1. I return now to the errors made by the Tribunal in [8] and [10] of its reasons.  The first error is the finding that the applicant’s last substantive visa expired on 28 June 2016.  That is incorrect, it actually expired on 28 June 2012.  As a consequence, the finding at [10] that the application was lodged over six months since the applicant last held a substantive visa is also incorrect.  These errors do not instil any confidence in the Tribunal’s reasons or in the way in which it conducted the review.  They are, to say the least, regrettable.

2. In any event, the factual error was not material.  Even if, as the Tribunal found incorrectly, the application was made just over six months after the expiry of the last substantive visa, the applicant would still have applied outside the 28 day period required by criterion 3001 and the Tribunal would still have had to come to the same conclusion that it did: namely that the criterion was not met.  As the error was not material, it did not affect the exercise of jurisdiction by the Tribunal. 

3. The other error as I have mentioned, and was properly brought to my attention by the submissions of the first respondent, was the reference in [8] of the reasons to a subclass 426 visa. At the relevant time, cl.602.213(4) provided:

   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. 

4. It seems that the Tribunal was referring to an earlier version of the Regulations, which is the version that I had set out in Cakau referred to at [1] above. Nevertheless, once again, the error is immaterial. The fact remains that the relevant version of the Regulation still required that the last held visa was not a subclass 403 visa. The Tribunal made a finding to that effect, and for that reason, sub-cl.(4) could not be met. The error not being material to the outcome of the decision did not go to the Tribunal’s exercise of jurisdiction.

Conclusion

1. For all of those reasons, I am not satisfied there is any jurisdictional error in the Tribunal’s reasons.  The application must be dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         11 May 2018