AKRAM v Minister for Immigration

[2018] FCCA 1856

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKRAM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1856

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief sought – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.5, 30(2)

Migration Regulations 1994 (Cth), Schedule 2, cls. 602.212(6), 602.213, Schedule 3, criterion 3001

Applicant: MUHAMMAD AKRAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3470 of 2016

Judgment of: Judge Manousaridis

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Sydney

Delivered on: 11 July 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms A Nanson of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3470 of 2016

MUHAMMAD AKRAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review be dismissed because it does not raise an arguable case for the relief it seeks. The application for judicial review relates to the decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical Treatment visa).

Background

1. The applicant, who is a national of Pakistan, applied for a Medical Treatment visa on 16 June 2016. To have been entitled to a Medical Treatment visa the applicant had to satisfy, among other things, the criteria specified in cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause required that the applicant be in Australia at the time he applied for the Medical Treatment visa, that the applicant held a “substantive temporary visa”, other than of the kind identified in cl.602.213(2) of Schedule 2,[1] and that the requirements described in cl.602.212(6) were not met in relation to the applicant. The requirements specified in cl.602.212(6) included the requirements that an applicant be 50 years of age or over, and that the applicant be medically unfit to depart Australia due to a permanent or deteriorating disease or health condition as evidenced by a written statement to that effect from a medical officer of the Commonwealth.

   [1] The effect of the definitions of “substantive visa” given in s.5 of the Act and of “temporary visa” given in s.30(2) of the Migration Act 1958 (Cth) is that a “substantive temporary visa” is a visa to  remain in Australia during a specified period, or until a specified event happens, or while the holder of the visa has a specified status, but excludes a bridging visa, or a criminal justice visa, or an enforcement visa.

2. Clause 602.213 of Schedule 2 to the Regulations also required the applicant satisfy criteria 3001, 3003 and 3005 of Schedule 3 to the Regulations. Relevant to the case before me is criterion 3001(1) which required that the application for the Medical Treatment visa be validly made within 28 days after the “relevant day (within the meaning of subclause (2))”. Subclause (2) of criterion 3001 contains various possible relevant days. Relevant to the case before me is the day provided for in cl.3001(2)(c), which applies where an applicant ceased to hold a substantive visa or a criminal justice visa on or after 1 September 1994, or the applicant entered Australia unlawfully on or after 1 September 1994. In those circumstances, the relevant day is the later of the last day when the applicant held a substantive, or criminal justice visa, or the day when the applicant last entered Australia unlawfully. To comply with criterion 3001, therefore, the applicant in the case before would have needed to apply for the Medical Treatment visa within 28 days after his last substantive visa ceased to have effect.

3. The applicant applied for the Medical Treatment visa on 16 June 2016.[2] The delegate refused the application because the delegate found the applicant’s application was not validly made within 28 days after the applicant’s last substantive visa had ceased.[3] The delegate’s record of decision notes the applicant last substantive visa was a UC-456 (456 visa), and that it “ceased on 13/10/2012”. There is in evidence before me records maintained by what is now known as the Department of Home Affairs (Department) which identifies the visas the applicant held. That records that the applicant held a 456 visa that ceased on 31 May 2012, but after that date the applicant only held bridging visas.[4]

   [2] CB1

   [3] CB32

   [4] CB25

4. On 7 July 2016 the applicant lodged an application for review with the Tribunal.[5] On 27 October 2016 the applicant provided to the Tribunal medical reports which indicated the applicant had completed treatment for a particular illness but was required for further testing for another illness, and that a number of appointments have been set for the purpose of the testing.[6]

   [5] CB33-39

   [6] CB57-62

Tribunal’s reasons

1. The Tribunal considered that the issue before it was whether the applicant satisfied the requirements of cl.602.213 of Schedule 2 to the Regulations.[7] The Tribunal found the applicant was present in Australia at the time he applied for the Medical Treatment visa. The Tribunal also found that the applicant did not hold a substantive temporary visa on 16 June 2016 because the last substantive visa he held ceased “on 13 October 2012”.[8]

   [7] CB74, [6]

   [8] CB75, [11]

2. The Tribunal next considered whether the applicant satisfied the criteria specified in cl.602.212(6) of Schedule 2 to the Regulations. The Tribunal noted the applicant had not turned 50 years of age at the time of the application for the Medical Treatment visa, and therefore he did not meet the requirements of cl.602.212(6) of Schedule 2 to the Regulations.[9]

   [9] CB75, [12]

3. The Tribunal finally considered whether the applicant met criterion 3001. The Tribunal noted that in order to satisfy that criterion the application had to been lodged within 28 days of the “relevant day”;[10] and that the delegate’s decision record indicates that the last substantive visa the applicant held expired on 30 October 2012. Given the applicant applied for the Medical Treatment visa on 16 June 2016, the Tribunal found the applicant failed to satisfy criterion 3001 and, therefore, failed to satisfy cl.602.213 of Schedule 2 to the Regulations.[11]

   [10] CB75, [14]

   [11] CB75, [16]

4. The Tribunal recorded the applicant’s submission that he was unaware of the dates for applying for a Medical Treatment visa. While accepting this may be true, the Tribunal said “the legislation sets mandatory dates for application for this visa”.[12] The Tribunal also referred to the applicant’s having submitted medical evidence, but noted that, as it explained to the applicant at the hearing, “the medical evidence is not relevant to criterion 3001”.[13]

   [12] CB75, [17]

   [13] CB75, [17]

Grounds of application

1. The application contains the following grounds of application:

   1.  The Tribunal denied me procedural fairness in that it failed to give proper consideration to the medical records and evidence that I presented to the Tribunal supporting my case for a medical visa.

   2.  The Tribunal misapplied and/or misconstrued Clause 602.121(6) of the Regulations and in so doing committed legal error that I do not qualify for the medical visa that I had applied.

   3.  The Tribunal misapplied criterion 3001 in that 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.

   4.  The Tribunal's decision is legally unreasonable in the circumstances of my case in that my medical condition and all supporting medical evidence shows that I should be granted a medical visa to continue my medical treatment in Australia.

   5.  I kindly request the Honourable Court to kindly set aside the Tribunal's decision of 9 November 2016.

2. Ground 1 complains the Tribunal failed to consider the applicant’s medical evidence and, for that reason, the Tribunal denied the applicant procedural fairness. It is true that, although it was aware the applicant provided medical evidence, the Tribunal did not consider it. It is beyond argument, however, the Tribunal made no jurisdictional error by not considering the applicant’s medical evidence. As it correctly noted, medical evidence was not relevant to whether the applicant satisfied criterion 3001. Ground 1, therefore, is not arguable.

3. Ground 2 claims the Tribunal misunderstood or misapplied “Clause 602.121(6) of the Regulations”. There is no such clause in Schedule 2, so I take the applicant intended to refer to cl.602.212(6) of Schedule 2. So read, this ground also is not arguable. The Tribunal found the applicant had not turned 50 years of age, being one of the requirements of cl.602.212(6). There can be no argument that turning 50 years of age is a requirement of cl.602.212(6) of Schedule 2 to the Regulations. Nor can there be any argument that the Tribunal was incorrect in finding the applicant has not turned 50 years of age. The evidence before me shows the applicant was born in 1972.[14]

   [14] CB25

4. Ground 3 claims the Tribunal misapplied criterion 3001 because, although the applicant did not hold a substantive visa, his medical condition deteriorated after his last substantive visa expired. It is beyond argument that whether or not an applicant’s medical condition has deteriorated after his or her last substantive visa has ceased to have effect is not relevant to criterion 3001. That criterion only deals with the time by which an application must be made; and there is no discretion to extend the time by which an application for a Medical Treatment visa can be made. Ground 3, therefore, is also not arguable.

5. Ground 4 claims the Tribunal acted unreasonably in failing to consider the applicant’s medical condition and medical evidence. It is not arguable, however, that these matters are relevant to criterion 3001. Ground 4, therefore, is not arguable.

6. Ground 5 does not state a ground, but is a request that this Court set aside the Tribunal’s decision.

Matters stated at hearing

1. The applicant, who is not legally represented, appeared before me and, with the assistance of an interpreter, made submissions. He said he does not know much about the law; that he is being treated for a medical condition which is “pretty bad”; that he is not telling lies; that he should be allowed to stay in Australia until the treatment for his medical condition runs its course; that he is suffering financial and other hardship, including being on the streets; he has borrowed money; that in Pakistan one cannot obtain original medications; and that he had no idea about the requirement of having to apply within 28 days of holding a substantive visa.

2. All these matters give rise to sympathy for the applicant. As I informed the applicant, however, my power was limited to determining whether the Tribunal made any error in concluding that the applicant had to, but failed to apply within 28 days of the applicant’s holding a substantive visa. None of the matters raised by the applicant at the hearing before me could suggest he has an arguable case to set aside the Tribunal’s decision.

Other matters

1. The Tribunal proceeded on the basis that the applicant last held a substantive visa on 13 October 2012, being the date the delegate found was the date on which the applicant last held a substantive visa. That finding, however, is not reflected in the evidence before me of the Departmental records of the visas the applicant held. As I have already noted, those records show that the applicant last held a substantive visa on 31 May 2012. This, however, does not give rise to any arguable case of jurisdictional error. There is nothing to suggest that the applicant held a substantive visa after 31 May 2012 or after 13 October 2012.

Disposition and costs

1. The applicant has no arguable case for the relief he seeks, and I propose to order that the application be dismissed.

2. At the conclusion of the hearing I indicated that I would give my decision on 11 July 2018. The applicant, who resides in Griffith, asked if he had to attend Court. I informed the applicant he did not have to attend. I also informed the applicant, however, that there will be the question of costs. I explained that the usual order for costs is that the successful party is entitled to an order for costs. The applicant made no submissions against my applying the usual order for costs. Ms Nanson, who appeared for the Minister, said the Minister would be seeking costs if he were to succeed; and that he would be seeking an order that the costs be set in the scale amount of $3,606.

3. There is no reason why the usual order as to costs should not apply. I propose to order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $3,606.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 July 2018