DENG v Minister for Immigration

[2017] FCCA 1580

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1580

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a medical treatment visa under subclass 602 of Migration Regulations 1994 (Cth) – application made 5½ years after last substantive temporary visa held – applicant could not meet criterion 3001 – Tribunal had no discretion and bound to refuse medical treatment visa – Tribunal did not commit jurisdictional error – application for review in this Court dismissed.

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

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

Singh v Minister for Immigration and Border Protection [2017] FCA 525

Applicant: YUE DENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1051 of 2016

Judgment of: Judge Dowdy

Hearing date: 24 May 2017

Delivered at: Sydney

Delivered on: 12 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms S He

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 29 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1051 of 2016

YUE DENG

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 China aged 29 years, having been born on 1 August 1987.

2. By Application filed in this Court on 29 April 2016 he seeks to quash and have redetermined the decision of the Administrative Appeals Tribunal (Tribunal) dated 6 April 2016 affirming a decision dated 30 November 2015 of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) not to grant to him a Medical Treatment (Subclass 602) visa (Medical visa).

Background

1. The Applicant applied for the Medical visa on 27 November 2015. The criteria for the grant were set out in cl.602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

2. The purpose of a Medical visa is for persons to visit or remain in Australia temporarily for medical treatment: cl.602.211 of the Regulations.

3. The Minister had granted to the Applicant a previous visa being a Student (Class TU) (Subclass 570) visa (Student visa) which had been cancelled on 28 May 2010. It was common ground before the Tribunal that the Student visa had been cancelled on that date.

4. In these circumstances the critical issue before the Tribunal was whether the Applicant was able to meet cl.602.213 of the Regulations.

5. Clause 602.213 relevantly provided as follows:-

   602.213

   (1) …

   (2) …

   (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) …

   (5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

6. Sub-clause 3 of cl.602.213 was the sub-clause relevant to the Applicant’s position. He was in Australia at the time of his Medical visa application and he did not then hold a substantive temporary visa. Accordingly, sub-clause 5 would apply and require him to satisfy criteria 3001-3005 in Schedule 3 to the Regulations unless he satisfied sub-clause 3(c) of cl.602.213 by meeting all of the requirements of cl.602.212(6). One requirement by virtue of cl.602.212(6)(b) was that he had turned the age of 50 years, and clearly the Applicant could not satisfy that requirement.

7. It necessarily followed that the Applicant had to satisfy criterion 3001 which relevantly required that his application for the Medical visa had to be made within 28 days of the relevant day which, in the circumstances, was the last day when the Applicant held a substantive visa, being 28 May 2010.

8. Obviously the Applicant did not meet criterion 3001 because his Medical visa application was made some 5½ years after his last substantive visa, being the Student visa, had ceased.

9. In these circumstances the Tribunal, having set out its relevant factual findings and its view of the relevant statutory framework affirmed the Delegate’s decision not to grant to the Applicant a Medical visa.

10. The Tribunal’s view and application of the statutory framework in relation to the Medical visa was in conformity with the comprehensive analysis by Perram J in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 (Sayadi) of that framework.

Grounds of Attack on Tribunal Decision in this Court

1. Reading the Application widely and favourably to the Applicant, his Grounds are as follows (numbering sequentially corrected):-

   1.I disagree with Immigration and 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 had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.

   3.DIBP and AAT should (sic) granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

   4.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.

   5.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.

   6.I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

   (emphasis added.)

2. Unfortunately for the Applicant none of his Grounds either address or overcome the relevant statutory provisions which the Tribunal relied upon and applied in affirming the Delegate’s decision. In particular, as stated by Perram J in [18] of Sayadi, neither the Minister through his Delegate or the Tribunal had any discretion to exercise favourably to the Applicant because of any compassionate circumstances. Likewise, in my view the Tribunal had no discretion available to it because of “compelling reasons” or “special situation”. The Minister and the Tribunal were bound to refuse the Medical Treatment visa to the Applicant as he was simply not eligible for the visa because he had not applied within the 28-day period from 28 May 2010. As White J said in Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [6]:-

   [6]Neither the Migration Act 1958 (Cth) nor the Migration Regulations permitted any extension of the 28 day period. It does not matter for present purposes whether the requirement that the application be made within 28 days is a condition of a valid application or a condition of eligibility for the Medical Treatment visa. In either case, the Tribunal was bound in the appellant’s circumstances to dismiss the application for the visa.

Conclusion

1. In my view the Decision of the Tribunal was clearly correct and the Applicant has failed to establish any jurisdictional error which means that his Application to this Court must be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     12 July 2017