Asy15 v Minister for Immigration

[2017] FCCA 1585

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1585

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 – 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: ASY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3307 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 3307 of 2016

ASY15

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 female citizen of Jordan aged 30 years, having been born on 10 August 1986.

2. By Application filed in this Court on 25 November 2016 she 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 her a Medical Treatment (Subclass 602) visa (Medical visa).

3. The Applicant applied for a Medical visa on 16 May 2016 in Australia. She 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 she thus did not hold a substantive temporary visa at the time of her application for the Medical visa on 16 May 2016.

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

   I am a daughter of the applicant.

6. Further, the Applicant has never since asserted a medical treatment for which she 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) in that she neither had turned 50 years of age nor had a written statement from a Medical Officer of the Commonwealth that she 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 her 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 she 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 she was some 26 months late in making her application for the Medical visa. She 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 her 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 her application for a Medical visa in the required 28-day period after the expiry of her 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 her application for a Medical visa within 28 days after the date on which she held her last substantive temporary visa. This assertion that Australian law was “wrong” was repeated at the hearing by the Applicant. 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