Asx15 v Minister for Immigration

[2017] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASX15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1581

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for medical treatment visa – applicant 26 months late in applying for medical treatment visa – applicant needed to but could not comply with criterion 3001 – assertion Administrative Appeals Tribunal fell into jurisdictional error because it overlooked “compelling and compassionate circumstances” – AAT had no discretion and refusal of medical treatment visa inevitable –no jurisdictional error – application for judicial review refused.

Legislation:

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

Migration Regulations 1994 (Cth)

Cases cited:

Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352

Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235
Singh v Minister for Immigration and Border Protection [2017] FCA 525

Applicant: ASX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3306 of 2016

Judgment of: Judge Dowdy

Hearing date: 23 June 2017

Delivered at: Sydney

Delivered on: 12 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms H Dejean

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 25 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3306 of 2016

ASX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Jordan aged 61 years, having been born on 5 November 1955.

2. By Application filed in this Court on 25 November 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 31 October 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 18 May 2016 refusing to grant to him a Medical Treatment (Subclass 602) visa (Medical visa). The Applicant applied for a Medical visa on 16 May 2016 in Australia.

3. He had previously entered Australia on a Visitor (Subclass 600) visa (Visitor visa) under the Migration Act 1958 (Cth) (Act). This was a temporary substantive visa (see definition of substantive visa in s.5 of the Act and s.30(2)(a)).

4. The Applicant last held the Visitor visa on 3 February 2014 and he thus did not hold a substantive temporary visa at the time of his application for the Medical visa on 16 May 2016.

5. In his Medical visa application he stated he would be under medical care while in Australia for the period from 16 May 2016 to 16 May 2017. However in section 18 of his Medical visa application form, in which he was required to describe the medical treatment in Australia which he had arranged and its estimated cost, he merely responded:

   I am a husband of the applicant.

6. Further, the Applicant has never since asserted a medical treatment for which he needed the Medical visa.

Grounds for the Grant of a Medical Visa Under Subclass 602

1. An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: cl.602.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

2. As at the date of decision the Applicant had to satisfy cl.602.213 which provided as follows: 

   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)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or

   (b)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)a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or

   (b)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.

(emphasis added.)

1. As the Applicant did not hold a substantive temporary visa at the time of her application for the Medical visa on 16 May 2016 and could not meet the requirements stated in cl.602.212(6)(f) in that he did not have a written statement from a Medical Officer of the Commonwealth that he was medically unfit to depart Australia, cl.602.213(3) was satisfied so that cl.602.213(5) therefore applied. Consequently it was necessary for him to satisfy criterion 3001 in Schedule 3 to the Regulations.

2. Relevantly, criterion 3001 required that the Applicant’s application for a Medical visa must have been made within 28 days, after the “relevant day”, which for the Applicant was the last day when he held a substantive visa, namely 3 February 2014: criterion 3001(1) and (2)(c)(iii).

Decisions of Delegate and Tribunal

1. Unfortunately for the Applicant he was some 26 months late in making his application for the Medical visa. He was required to apply within 28 days after 3 February 2014 but did not apply for the Medical visa until 16 May 2016.

2. Accordingly the Delegate and subsequently the Tribunal, in affirming the Delegate’s decision, found that the Applicant did not satisfy criterion 3001 and therefore did not satisfy cl.602.213 and thus did not meet the requirements for the grant of a Medical visa.

3. I note that the Tribunal’s decision and reasoning were in accordance with the analysis of the relevant regulations and criteria set out in the decision of Dowsett J in Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 (Saifuddin).

Grounds of Attack on Tribunal Decision in this Court

1. In his Application filed in this Court on 25 November 2016 the Applicant posited the following Grounds for review of the Tribunal’s decision:

   1.The Tribunal refused my application based on being lodged while I was on bridging visa and I was not holder of substantive visa.

   2.The Tribunal overlooked the compelling and compassionate circumstances and failed to consider our application on its merits and simply because the regulations require a substantive visa. I do believe that the decision is a denial of fairness and natural justice because the law deprives me of the right to lodge an application under the current circumstances.

Consideration

Ground 1

1. This appears to be a historical statement of part of the reasons for which the Tribunal affirmed the Delegate’s decision not to grant a Medical visa to the Applicant and does not amount to a substantive Ground asserting that the Tribunal’s decision was affected by jurisdictional error.

Ground 2

1. This Ground is first to the effect that the Tribunal failed to take into account “compelling and compassionate circumstances” as excusing the Applicant’s failure to lodge his application for a Medical visa in the required 28-day period after the expiry of his last substantive temporary visa.

2. However, it was not open to the Delegate or the Tribunal to take into account any such “compelling and compassionate circumstances”. The Tribunal had no power to do so and had no power to exercise any discretion in the Applicant’s favour for such reasons. The fact of the matter was that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse a Medical visa and the Tribunal bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18]-[19] per Perram J; Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [6] per White J and Saifuddin at [14]-[15].

3. Second, this Ground also seems to argue against the policy of Australian law in so far as criterion 3001 required the Applicant to make his application for a Medical visa within 28 days after the date on which he held his last substantive temporary visa. However, the argument is misplaced. The Tribunal had a bounden duty to apply Australian law and Ground 2 does not establish that the decision of the Tribunal was affected by jurisdictional error.

Conclusion

1. In my view the decision of the Tribunal to affirm the Delegate’s decision to refuse a Medical visa to the Applicant was inevitable in the circumstances and not affected by jurisdictional error and accordingly the Application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     12 July 2017