BEGUM v Minister for Immigration

[2018] FCCA 1212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGUM v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1212

Catchwords:
MIGRATION – Medical treatment (Class UB) visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider compelling circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cll.602.212, 602.213 of sch.2, criterion 3001 of sch.3.

Cases cited:

Cakau v Minister for Immigration & Border Protection (2017) FCCA 952

Sayadi v Minister for Immigration & Border Protection [2015] FCA 1235

Applicant: ZEENATH BEGUM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1108 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 J Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1108 of 2017

ZEENATH BEGUM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 10 March 2017.  The Tribunal affirmed a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.  The applicant in her application to this Court states that her visa application was refused because she did not hold a current substantive visa and argues that the Tribunal did not consider her compelling circumstances. 

2. The relevant statutory criteria for the grant of the visa for which the applicant applied is set out in Cakau v Minister for Immigration & Border Protection (2017) FCCA 952 at [8] to [14].

3. The application, which was lodged on 25 July 2016, was refused by a decision made by a delegate of the Minister for Immigration on 27 July 2016.  The applicant applied to the Tribunal for review of that decision and on 10 March 2017 attended a hearing conducted by the Tribunal.  On the same day, the Tribunal made a decision to affirm the delegate’s decision.  

4. The Tribunal explained that cl.602.213 of sch.2 to the Migration Regulations 1994 (Cth) applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type or, was not medically unfit to depart Australia as required by cl.602.212(6).

5. The additional requirements are that the last held substantive temporary visa was not a subclass 426 or 403 visa and that certain sch.3 criteria are met.  The Tribunal at [8] of its reasons explained that the applicant did not meet cl.602.212(6), although it did not explain why that was the case.  There can be no issue about that as the applicant was not 50.  The Tribunal also found that the applicant did not hold a substantive temporary visa at the time of the application and that the last visa held by her was not a subclass 403 or 426 visa.

6. In those circumstances it concluded that the real issue was whether the applicant met the criteria in sch.3.  The Tribunal explained, as is evident from the provision set out in Cakau, that in order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days on the “relevant day”. 

7. In this case, the Tribunal found that the relevant day was 5 July 2013 because that was the day on which the last held substantive visa by the applicant, being a visitor visa, had expired.  In light of that, its conclusion at [11] of its reasons that the application was not made within the 28 days of the relevant day was clearly open to it, if not, the only finding that could have been made.  In light of that conclusion, the Tribunal found that the applicant did not meet the criteria for the grant of the visa and affirmed the delegate’s decision. 

8. The reference in the applicant’s ground of review to compelling circumstances suggests that the applicant understands that the Tribunal had some discretion to waive the requirement in criterion 3001 if it was satisfied that there were compelling circumstances to do so. Certainly that is the case in respect to some subclasses of visa; however, it is not the case in respect to the medical treatment visa. 

9. There is simply no discretion for the Tribunal to waive the requirement and once it had concluded that that requirement had not been met, it was obliged to conclude that the applicant had not satisfied the criteria for the grant of a visa, and to affirm the decision of the delegate: .  see Sayadi v Minister for Immigration & Border Protection [2015] FCA 1235 at [19].

Conclusion

1. For those reasons, there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 15 May 2018