CHG15 v Minister for Immigration and Anor (No.2) - [2019] FCCA 704

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHG15 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2019] FCCA 704

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – Tribunal finding that the applicant was ineligible because the visa application was not made within the prescribed time period – grounds of review addressing the merits of the decision – whether the Tribunal needed to address all of the visa criteria referred to in a concession statement by the Minister in earlier judicial review proceedings considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Hossain v Minister for Immigration [2018] HCA 34; (2018) 359 ALR 1; (2018) 92 ALJR 780

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Sayadi v Minister for Immigration [2015] FCA 1235

Weng v Minister for Immigration [2017] FCA 1409

Applicant:

CHG15

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3136 of 2017

Judgment of:

Judge Driver

Hearing date:

20 March 2019

Delivered at:

Sydney

Delivered on:

20 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Evans of Sparke Helmore

ORDERS

The name of the applicant is not to appear on the transcript of today’s proceedings.
The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
The application filed on 10 October 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3136 of 2017

CHG15

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 14 September 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a medical treatment visa.[1]
[1] The applicant had previously applied for a protection visa and was hence allocated a pseudonym
Background facts relating to this matter are set out in the Minister’s original outline of submissions filed on 8 August 2018. I adopt as background for the purposes of this judgment, with any necessary amendments, from [3] through to [15] of those submissions.
On 28 June 2016, the applicant applied for a medical treatment visa.[2] The application was refused by the delegate and the delegate’s decision was affirmed by the Tribunal on 14 November 2016.
[2] Court Book (CB) 1
The applicant sought judicial review of the first Tribunal’s decision in this Court. On 8 May 2017, the Court remitted the matter by consent for reconsideration, on the basis that the Tribunal had misapplied clause 602.212(6) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 36-37
Following remittal, the applicant attended a hearing before the Tribunal (differently constituted) on 12 September 2017.
On 14 September 2017, the Tribunal affirmed the delegate’s decision to refuse the grant of the visa.

Legislation

The criteria for a medical treatment visa relevantly include those specified in clause 602.213 of the Regulations:
(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.
Subclause 602.212(6) provides:
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.
The applicant was required to meet Schedule 3 criterion 3001 for the grant of the visa if he did not meet clause 602.212(6). Clause 602.2 provides that all of the primary criteria are required to be satisfied at the “time of decision”.

Tribunal decision

The Tribunal identified the issue before it as being whether the applicant satisfied the requirements of clause 602.213 of the Regulations.[4] The Tribunal correctly observed that there was no discretion in relation to the requirements of clause 602.213.[5]
[4] CB 55, [9]
[5] CB 56, [15]
The Tribunal recorded the applicant’s claim that after he was taken into immigration detention in 2000, he was exposed to asbestos and developed a skin allergy.[6] The Tribunal further noted evidence given by the applicant’s wife that the medical treatment visa was not in existence when the applicant developed his skin condition.[7]
[6] CB 56, [13]
[7] CB 56, [14]
The Tribunal considered whether the applicant satisfied the criteria in clause 602.213 of the Regulations and relevantly found:
a)the applicant was in Australia at the time of his visa application;[8]
b)the last substantive temporary visa held by the applicant ceased on 28 August 1996;[9] and
c)The applicant did not meet the requirements of clause 602.212(6) of the Regulations because there was no written statement from a Medical Officer of the Commonwealth that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition.[10]
[8] CB 56, [16]
[9] CB 56, [17]
[10] CB 56, [19]
On the basis of these findings, the Tribunal concluded that the applicant did not meet clause 602.212(6) of the Regulations and was therefore required to meet each of criteria set out in 3001, 3003, 3004 and 3005 of Schedule 3 of the Regulations.[11]
[11] CB 57, [20]
The Tribunal proceeded to consider the requirements of criterion 3001 and found that the last substantive visa held by the applicant ceased on 28 August 1996, whereas the application for the visa the subject of the present application was not made until 27 June 2016.[12] Accordingly, the Tribunal found that the application was not made within 28 days of the last substantive visa held by the applicant ceasing to have effect and that the applicant did not therefore satisfy criterion 3001.[13]
[12] CB 57, [23]
[13] CB 57, [22]-[23]
The Tribunal found that as the applicant did not meet criterion 3001, he was unable to satisfy clause 602.213 of the Regulations and therefore did not meet the criteria for the grant of the visa.[14] Accordingly, the Tribunal affirmed the decision under review.[15]
[14] CB 57, [25]-[27]
[15] CB 57, [28]

The present proceedings

These proceedings began with a show cause application filed on 10 October 2017. There are three grounds in the application under the heading “Final Orders Sought”:
1.I disagree with AAT's decision. They did not consider that I have genuine intention to apply for medical visa onshore.
2.They did not consider the fact that I was detend and caused serious medical problem and I could not apply for medical visa then. DIBP and AAT did not give a good consideration of my situation was out of my control.
3.AAT did not well consider my explanation at the hearing and should allow me to conduct my medical treatment in Australia.
(errors in original)
There are three further or alternative grounds under the heading “Grounds of Application”:
1.I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control.
2.AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation
3.I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.
The application is supported by a short affidavit filed with it which I received as a submission. I have before me as evidence the court book filed on 11 December 2017.
This matter came before me at a show cause hearing on 15 August 2018. At that time a question arose whether the Tribunal as presently constituted had acted consistently with a concession made on behalf of the Minister on judicial review of the earlier Tribunal decision. The consent orders and notation are reproduced on pages 36 and 37 of the court book. The question in my mind was whether the concession in relation to the requirements of the applicable criteria pursuant to clause 602.212(6) required the Tribunal to consider all of the specified criteria. I made a show cause order in the terms set out at Order 1 on 15 August 2018:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the question of whether the Administrative Appeals Tribunal addressed the matters contained in the Minister's concession statement concerning the first Tribunal decision, reproduced at pages 36-37 of the court book.
The matter was listed for a final hearing today.
Nothing further was filed by or on behalf of the applicant. The Minister has filed supplementary submissions consistently with the orders I made on 15 August 2018.
I invited oral submissions from the applicant this afternoon. He expressed dissatisfaction with the second Tribunal hearing and decision. In his view, there is no real difference between the two decisions. He submits that the Tribunal on the second occasion did not pay proper regard to the legal defect in the first decision.
The question, in effect, boils down to whether all of the criteria specified in clause 602.212(6) must be considered or whether it is sufficient if a visa applicant is unable to satisfy one of them. The Minister’s submissions espouse the view that the second proposition is the correct one. That proposition is supported by authority. I agree that the Minister’s supplementary submissions correctly set out the legal position.
The concession statement concerning the first Tribunal decision was:
The first respondent concedes that the decision of the second respondent dated 14 November 2016 (AAT case number 1610969) is affected by jurisdictional error. In particular, the second respondent misapplied the statutory criteria in cl 602.212(6)(a)-(f) of Schedule 2 to the Migration Regulations 1994 (Cth) by finding that “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”. Whether the applicant held a substantive temporary visa at the time of the application, or whether it was a subclass 403 or 426 visa, was not relevant to cl 602.212(6). Instead, the second respondent was required to consider the specific matters set out in cl 602.212(6), namely, whether the applicant (a) was in Australia; (b) had turned 50; (c) had applied for a permanent visa while in Australia; (d) appeared to have met all the criteria for the grant of the visa, other than public interest criteria related to health; (e) had been refused the visa; and (f) was medically unfit to depart Australia.
Relevantly, the concession statement provided that “the second respondent was required to consider the specific matters set out in cl 602.212(6)” and then listed each requirement of clause 602.212(6)(a)-(f).[16] For the reasons set out below, no jurisdictional error arises in the second Tribunal decision by virtue of the wording of the concession statement.
[16] CB 37
First, the Tribunal was required to consider the specific matters in clause 602.212(6), but the listing of those matters and the broader wording of the statement did not compel the Tribunal to proceed to consider each and every requirement in clause 602.212(6) in circumstances where those requirements are cumulative and the Tribunal found that the applicant did not satisfy clause 602.212(6)(f) (with the effect that the applicant could not succeed).
Secondly, the wording of the concession statement is directed at, and must be read in the context of, the earlier Tribunal decision. The earlier Tribunal erred on the basis that it found the applicant did not meet clause 602.212(6) “as he did not hold a substantive temporary visa at the time of the applicant, and the last such visa held was not a Subclass 403 or 426 visa”.[17] That finding did not engage with the any of the requirements of clause 602.212(6)(a)-(f) at all, and erroneously imported requirements from clause 602.212(4) and criterion 3001 into its findings, which were not relevant to clause 602.212(6).[18]
[17] CB 31, [8]; CB 36
[18] CB 37
Thirdly, in reconsidering the matter upon remittal the Tribunal was under no misunderstanding as to the requirements of clause 602.212(6), and in circumstances where the applicant did not satisfy clause 602.212(6)(f) because he did not provide a written statement from a Medical Officer of the Commonwealth, he did not satisfy clause 602.212(6) as a whole.
In Sayadi v Minister for Immigration,[19] Perram J considered an identical scenario where an applicant was found not to have satisfied clause 602.212(6)(b) because he had not turned 50. His Honour found that since the applicant did not satisfy clause 602.212(6)(b), it was rendered “unnecessary to consider any of the other requirements of this subclause”.
[19] [2015] FCA 1235
Thus, no error arises in the Tribunal’s disposal of the application on the basis of the applicant’s non-satisfaction of clause 602.212(6)(f); to have considered the remainder of the criteria would have been an entirely redundant exercise. Nor was such an exercise compelled by the concession statement.
Finally, even if I were wrong to conclude that there was no error in the manner in which the Tribunal responded to the Minister’s concession statement concerning the first Tribunal decision, it does not follow that the Tribunal committed a jurisdictional error. That is because it cannot be said that any “failure” by the Tribunal to consider each and every requirement of clause 602.212(6) would have made any material difference to the decision that the Tribunal ultimately made.[20]
[20] Hossain v Minister for Immigration [2018] HCA 34; (2018) 359 ALR 1; (2018) 92 ALJR 780 at [30] per Kiefel CJ, Gageler & Keane
To the extent relevant, the Minister’s initial written submissions address correctly the grounds advanced by the applicant in his judicial review application.
By the grounds of his application, the applicant contends, in effect, that the Tribunal fell into legal error by not considering whether there were special circumstances which meant that he was unable to lodge his visa application within 28 days of his last substantive visa ceasing. These contentions were misconceived and did not identify any arguable case for the grant of the relief sought. The Tribunal did not have any discretion to waive compliance with the requirements of clause 602.213 including with criterion 3001.[21] The only question for the Tribunal was whether the applicant had applied for the medical visa within 28 days of his last substantive visa ceasing. Accordingly, in the absence of any discretion on the part of the Tribunal, the applicant’s personal circumstances were irrelevant to the Tribunal’s decision.
[21] Sayadi at [19]; Weng v Minister for Immigration [2017] FCA 1409 at [10]
The applicant’s grounds of review otherwise rise no higher than to express disagreement with the Tribunal’s decision and accordingly seek impermissible merits review.[22]
[22] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Conclusion

I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. Accordingly, the decision is a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000. That is significantly below the amount prescribed under the Federal Circuit Court Rules 2001 (Cth) for a final hearing. The applicant indicated his intention to appeal, but did not oppose the making of a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 March 2019