Cakau v Minister for Immigration & Border Protection

[2017] FCCA 952

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAKAU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 952

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – validity of application – application for review lodged out of time –whether the Tribunal had jurisdiction to waive criterion 3001 of sch.3 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Migration Regulations1994 (Cth), cll.602, 602.212, 602.213 of sch.2, criteria 3001, 3003, 3004 and 3005 of sch.3

Cases cited:

Plaintiff M96A/2016 v Commonwealth [2017] HCA 16

Applicant: JOSAIA NAITOKO CAKAU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1332 of 2016

Judgment of: Judge Smith

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Sydney

Delivered on: 19 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr L. Leerdam, DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1332 of 2016

JOSAIA NAITOKO CAKAU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Fiji who arrived in Australia on 16 August 2010 as the holder of a tourist visa. That visa expired on 16 November 2010 and was the last substantive visa held by the applicant.

2. On 5 November 2015, the applicant applied for a medical treatment (Class UB) visa in order to remain in Australia for the purpose of obtaining treatment for injuries suffered by him in a workplace accident in 2011.

3. On 10 November 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The applicant applied to the Administrative Appeals Tribunal for review of that decision.

4. The applicant attended a hearing conducted by the Tribunal on 20 April 2016. On the same day, the Tribunal made a decision affirming the decision of the delegate.

5. On 26 May 2016, the applicant made an application to this Court seeking judicial review of the Tribunal’s decision. That application was made one day outside the period allowed by s.477(1) of the Migration Act 1958 (Cth) (the Act). Given the short delay in making the application and the fact, as explained below, that there was at least an arguable error in the Tribunal’s decision, an order was made at the hearing on 2 May 2017 extending the period for making an application under s.477(2) of the Act, up to and including 26 May 2016. The parties then made submissions on the substantive application.

6. The Tribunal’s decision was based upon its finding that the application for the visa was made more than 28 days after the expiry of the applicant’s last substantive visa. On the basis of that finding, the Tribunal concluded that the applicant did not satisfy criteria 3001 of sch.3 to the Migration Regulations1994 (Cth) (the Regulations) and, as a consequence, did not satisfy cl.602.213 in sch.2 of the Regulations.

7. The applicant argued that the Tribunal should have waived the sch.3 criteria 3001 as he did not require any medical treatment until more than 28 days after the expiry of his substantive visa. In addition to that argument, there is a question as to whether the Tribunal erred by failing to consider whether the applicant met the criterion in cl.602.212(6) of sch.2 to the Regulations. For the reasons that follow, I am not satisfied that there was any jurisdictional error in the Tribunal’s decision and the application must be dismissed.

Relevant statutory provisions

1. In order for the applicant to be granted a medical treatment visa, the Minister or his delegate, and upon review the Tribunal, had to be satisfied that the applicant satisfied the criteria for the grant of that visa. The criteria for the grant of the visa were relevantly found in cl.602 of sch.2 to the Regulations.

2. Clause 602.212(1) required that the requirements in one of sub-clauses (2) to (8) were met. Those sub-clauses referred to various categories including medical treatment (sub-cl.2), organ donor (sub-cl.3), support person (sub-cl.4), Western Province of Papua New Guinea (sub-cl.5), unfit to depart (sub-cl.6), financial hardship (sub-cl.7) and compelling personal reasons (sub-cl.8). Sub-clause 6 provided:

   Unfit to depart

   (6)All of the following requirements are met:

   (a) the applicant is in Australia;

   (b) the applicant has turned 50;

   (c) the applicant has applied for a permanent visa while in Australia;

   (d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)the applicant has been refused the visa;

   (f) the applicant is 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.

3. The evident purpose of this criterion is to enable a person to remain in Australia for medical reasons if they would otherwise be stranded here and unable to obtain another type of visa due to the medical condition. Importantly, there is an age limit set so that a person under the age of 50 cannot meet the criterion.

4. Clause 602.213 is central to the issues in these proceedings. It provided:

   (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.

5. The effect of cll.602.213(1) and (3) is that, where the applicant was in Australia at the time of the visa application and cl.602.212(6) is not met, there are two streams of criteria in cl.602.213. The first is found in cl.602.213(2) which applies if the applicant held a substantive temporary visa at the time of the application. The second is in cll.602.213(4) and (5) which apply if the applicant did not hold a substantive temporary visa at the time of application.

6. The applicant did not have a visa at the time of application and so, subject to one possible qualification which is discussed below, the second stream applied to him. That meant that the applicant had to satisfy the sch.3 criteria 3001, 3003, 3004 and 3005.

1. Criterion 3001 relevantly provided:

   (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   …

   (c) if the applicant:

   (i)      ceased to hold a substantive…visa on or after 1 September 1994; or

   …

   whichever is the later of:

   (iii) the last day when the applicant held a substantive…visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   …

Tribunal’s decision

1. The Tribunal proceeded on the basis that the issue was whether the application for the visa was lodged within the time frame required by the Act. It explained how that issue arose in the statutory context in the following paragraphs of its reasons:

   7. Clause 602.213 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 if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl. 602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

   8. In the present case, the applicant last held a substantive visa on 16 November 2010. He made the current application for a medical treatment (visitor) visa on 5 November 2015. Therefore the applicant does not meet cl.602.212(6) as he did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

   (Emphasis added)

2. The reference to cl.602.212(6), if read literally, would have revealed that the Tribunal did not understand, or properly apply, the criteria relevant to the visa for which the applicant had applied. That is because cl.602.212(6) does not require an applicant to have held a substantive visa at the time of the application for the visa. It was in light of that obvious error, that an order was made extending the time for making this application.

3. However, on closer examination, the reference to cl.602.212(6) was a typographical error and is properly understood to be a reference to cl.602.213(1). That conclusion is based not only on the fact that the error in [8] of the Tribunal’s reasons is so obvious, but also because of the fact that the Tribunal had correctly referred to cl.602.212(6) in the preceding paragraph of its reasons. For that reason, although the error was sufficient to warrant the extension of time, it is not sufficient to justify the conclusion that the Tribunal fell into jurisdictional error.

4. The other concern that arises from these two paragraphs in the Tribunal’s reasons, is that it is not entirely clear whether or not the Tribunal properly turned its mind to the requirements of cl.602.212(6). The question whether the applicant met the requirements of that clause was made relevant by both sub-cll.602.213(1)(c) and 602.213(3)(c) and is the possible qualification referred to in paragraph [13] above.

5. If the Tribunal had failed to consider whether the applicant satisfied the requirements in cl.602.212(6) interesting questions would have arisen as to whether that fact was one which could be determined by the Court, or whether the Tribunal’s satisfaction was required by the criterion in cl.602.213[1]. In spite of some initial reservations, I have come to the conclusion that the Tribunal did in fact consider whether the requirements in cl.602.212(6) had been met. Although its reasons do not disclose much consideration of that issue, the only path by which the Tribunal could have concluded that the sch.3 criteria had to be satisfied, was to have considered whether the requirements of cl.602.212(6) had been met and, in light of the fact that it referred expressly to that requirement in [7] of its reasons, the only reasonable conclusion is that the Tribunal did consider those requirements.

   [1] See, for a recent example, Plaintiff M96A/2016 v Commonwealth [2017] HCA 16 at [38] – [42] (Gageler J).

6. That conclusion is fortified when one has regard to the requirements of cl.602.212(6) and the facts and evidence before the Tribunal. First, as I have observed, it is a requirement under that clause that the applicant has turned 50. The only evidence as to the applicant’s age before the Tribunal established that he was born on 13 October 1967 and so had not, and still has not, turned 50. Secondly, there was no written statement from a Medical Officer of the Commonwealth as required by sub-cl.(6)(f). For those reasons, it was never in issue before the Tribunal that the applicant could, on any view, satisfy the requirements in cl.602.212(6). In light of that, it is not surprising that the Tribunal did not expose much of its reasoning process in that regard in its statement of reasons.

7. For those reasons, the Tribunal was required to consider whether the applicant had satisfied the requirements of the sch.3 criteria 3001.

8. In considering that question, the Tribunal found that the applicant last held a substantive visa on 16 November 2010 and that that date was the relevant day within the meaning of criterion 3001. On the basis of that finding, and the fact that the application for the visa was made on 5 November 2015, the Tribunal concluded that the application was not made within 28 days of the relevant day. Therefore, the applicant did not satisfy criterion 3001.

9. The applicant did not take issue with the Tribunal’s conclusion in that respect; however, as orally noted, he argued that the Tribunal should have considered whether to waive criterion 3001. The Tribunal however, had no power to waive any of the criteria it considered and, for that reason, did not fall into error when it applied criterion 3001 without considering whether to waive it.

10. For those reasons, I conclude that the Tribunal properly understood and applied the criteria for the grant of the medical treatment visa. There is no jurisdictional error affecting the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     19 May 2017