Chatz Tzomaa v Minister for Immigration

[2018] FCCA 1867

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHATZ TZOMAA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1867

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application by applicant for a Medical Treatment (Visitor) (Subclass 602) visa – applicant asserts jurisdictional error by Administrative Appeals Tribunal in affirming delegate’s decision not to grant to him a Medical Treatment (Visitor) (Subclass 602) visa – applicant could not satisfy criterion 3001 under the Migration Regulations 1994 (Cth) in that he was 19 months late in making his application for the Medical Treatment (Visitor) (Subclass 602) visa – decision of Administrative Appeals Tribunal not affected by jurisdictional error.

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: GIECHIA VIKTOR SYMEON CHATZ TZOMAA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3399 of 2017

Judgment of: Judge Dowdy

Hearing date: 21 June 2018

Delivered at: Sydney

Delivered on: 20 July 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr J. Pinder

Solicitors for the First Respondent: Minter Ellison Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 7 November 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3399 of 2017

GIECHIA VIKTOR SYMEON CHATZ TZOMAA

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 Greece, aged 52 years, having been born on 23 July 1965.

2. By Application filed in this Court on 7 November 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 October 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 April 2017 refusing to grant to him a Medical Treatment (Visitor) (Subclass 602) visa (Medical visa).

Background

1. The Applicant lodged his application in Australia for the Medical visa on 10 April 2017.

2. The Applicant’s last substantive visa had been an Electronic Travel Authority (Class UD) (Subclass 601) visa (Visitor visa) which ceased on 14 July 2015. The Visitor visa has as its purpose, as expressed by cl.601.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), to provide a Visitor visa holder who genuinely intends to visit Australia temporarily, either as a tourist or as a person who wishes to engage in a business visitor activity, the ability to do so. Subclause 601.511 permits the Visitor visa holder to travel to, enter and remain in Australia during or until specified periods or events and therefore was a temporary substantive visa (see the definition of substantive visa in s.5 and s.30(2)(a) of the Migration Act 1958 (Cth)).

3. 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 of Sch.2 to the Regulations.

4. In his Medical visa application the Applicant stated that he would be under medical care while in Australia for the period from 5 April 2017 to 5 December 2017. 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 the estimated cost, he responded verbatim:

   I HAVE MULTIPLE INJURIES DUE TO FALL FROM A HEIGHT. I NEED TO GO THROUGH MULTIPLE SURGRIES FOR MY ARM BACK AND HIP. THE COST OF THE TREATMENT MAY GO UP TO AU$250,000.

Grounds for the Grant of a Medical Visa Under Subclass 602

1. 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)

2. As the Applicant did not hold a substantive temporary visa at the time of his application for the Medical visa on 10 April 2017 and could not meet the requirements of cl.602.212(6)(f) in that he did not have a written statement from a Medical Officer of the Commonwealth (MOC) which stated 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 of Sch.3 to the Regulations (Criterion 3001).

3. 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 14 July 2015: see Criterion 3001(1) and Criterion 3001(2)(c)(iii).

Decisions of Delegate and Tribunal

1. Unfortunately for the Applicant he was more than 19 months late in making his application for the Medical visa. He was required to apply within 28 days after 14 July 2015, being 11 August 2015, but did not make such an application until 10 April 2017.

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

1. In his Application the Applicant asserted the following Grounds for review of the Tribunal’s decision, reproduced verbatim as follows:

   GROUND 1

   1.      As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the Tribunal') stated in paragraph 16, "the tribunal finds that the applicant does not satisfy criterion 3001. As she does not satisfy criterion 3001, the tribunal does not consider it necessary to consider whether she satisfy the criteria in 3003, 3004 and 3005. As she does not satisfy criterion 3001, she is unable to satisfy cl.602.213". The Tribunal shows unreasonableness in its decision and assessing my compelling and compassionate circumstances which are beyond my control. I am bound to wheelchair and was admitted in hospital for approximately 3 months, still tribunal mentioned that they do not have any evidence. I have not deliberately manipulated my circumstances to give rise to compelling reasons. The Tribunal and the department should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.

   2.      GROUND 2

   As part of the reason for rejecting the claim, the Tribunal stated in paragraph 8, "There is no evidence before the Tribunal from a Medical Officer of the Commonwealth to the effect that he medically unfit to depart Australia due to permanent or deteriorating disease or health condition". The Tribunal shows unreasonableness in its decision and assessing situation. I am not in a position to travel. However, the tribunal and the department has not considered this as compelling circumstances, which shows unreasonableness in the tribunal decision.

   3. I kindly request the Honourable Court to kindly set aside the AAT's decision of dated 23 October 2017.

Consideration

Ground 1

1. The first part of this Ground is inapt to the present proceeding and has clearly been copied from another form of application. It refers to the Applicant as a female and the purported quotation from [16] of the Decision Record of the Tribunal does not appear in [16] of the Decision Record.

2. Nevertheless, as to the second part of the Ground the simple fact of the matter is that no “waiver provisions” applied with respect to the criteria governing the grant of the Medical visa. Nor was the Tribunal entitled to take into account “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 to grant to the Applicant a Medical visa, and the Tribunal was 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 [5] – [6] per White J and Saifuddin at [14] – [15].

3. Accordingly, Ground 1 fails to establish that the Tribunal’s decision was affected by jurisdictional error.

Ground 2

1. This Ground alleges that the Tribunal “showes unreasonableness” in its consideration of subclause 602.213(6), and specifically subclause (f). However, the Tribunal was correct to find that there was no evidence before it which suggested that the Applicant was 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 MOC.

2. At the hearing in this Court I invited the Applicant to tender any document that could be possibly regarded as a written statement from a MOC or which would have a tendency to satisfy cl.602.212(6)(f), but he was unable to do so.

3. Further, the Applicant has failed to establish that the Tribunal showed “unreasonableness in its decision and assessing situation”.

4. Accordingly, Ground 2 fails to establish jurisdictional error.

Ground 3

1. This Ground does not assert any form of meaningful jurisdictional error affecting the decision of the Tribunal.

Conclusion

1. None of the Grounds asserted by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court on 7 November 2017 is to be dismissed.

A Final Matter – Adjournment Application

1. I record that at the hearing whilst in reply to submissions from Mr Pinder, who appeared for the Minister, the Applicant sought an adjournment of six months so that he could obtain the services of a lawyer to defend him, to allow the mental and physical health issues which he claimed to suffer from to improve and so that he could get a written statement from a MOC. Mr Pinder opposed any adjournment.

2. I refused any adjournment. The Applicant had received ample time to obtain the services of a lawyer. He had appeared in Court in person on the first return date of his Application on 9 February 2018 when orders were made to get the matter ready for the final hearing, which was set down for 21 June 2018. No notice was given to either the Minister or the Court of any proposed application for an adjournment prior to it being made by the Applicant in reply to Mr Pinder. Further, I was of the view that, having regard to the Applicant’s clear failure to satisfy the criteria governing the grant of the Medical visa, the retention of a lawyer by the Applicant would have been of little utility. Even if the Applicant had been able to obtain a written statement from a MOC such a statement would not have been admissible in or relevant to the present proceeding. Finally, despite the Applicant’s assertions of mental and physical health issues, in my view he was well able to meaningfully and responsively participate in the hearing. Accordingly, I did not consider it to be in the interest of justice to grant any adjournment.

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

Associate: 

Date:  23 July 2018