Devadas v Minister for Immigration

[2015] FCCA 3053

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVADAS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3053

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether applicants satisfy schedules criteria – whether parties failed to consider criterion 3004 – parties given opportunity for further submissions.

Legislation:

Migration Act 1958 s.351.

Applicant: SATHASIVAM DEVADAS

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1259 of 2014

Applicant: RAJALUXMI DEVADAS

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1319 of 2014

Judgment of: Judge Burchardt

Hearing date: 26 August 2015

Date of Last Submission: 26 August 2015

Delivered at: Melbourne

Delivered on: 24 November 2015

REPRESENTATION

Counsel for the Applicants: In person

Solicitors for the Applicants: Not applicable

Counsel for the First Respondent: Ms Latif

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1259 of 2014

SATHASIVAM DEVADAS

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

MLG1319 of 2014

RAJALUXMI DEVADAS

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These are the reasons for judgment in two interrelated matters which I will deal with together.  The first, MLG1259 of 2014 is one in which Sathasivam Devadas is the applicant and the Minister for Immigration and Border Protection is the first respondent and the Migration Review Tribunal is the second respondent.  The second, which is MLG1319 of 2014 is one in which Rajaluxmi Devadas is the applicant.  The respondents are the same in each case.

2. These two interrelated matters are applications by a husband and wife.  They each seek judicial review of a decision of the Migration Review Tribunal, dated 4 June 2014, by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

3. Since the matters relied upon are entirely interrelated, and indeed the two decisions of the Tribunal are in relevantly identical terms, I will issue one judgment only for the two matters.

4. The grounds of application in each case are identical, as are the affidavits in support.  The only ground expressed is that:

   The applicant – (husband/wife) believes that the Tribunal applied the wrong test when determining the “relevant day” when applying the criterion 3001 under the migration regulation and thereby fell into jurisdictional error.

5. The affidavit in support (in each instance actually apparently sworn by the wife) reads relevantly:

   … My husband and I are aggrieved by the Tribunal decision not to grant us a medical treatment visa and believe the decision was wrong.

6. Although presented with the opportunity to do so, the applicants have filed no further materials or written submissions.  Given that they do not speak English and would be reasonably expected to have no understanding of the legal issues involved (something they asserted in oral submissions before the court, in any event) this is in no way surprising.

7. In the circumstances, the court is assisted by the written submissions of the first respondent and by looking at the Tribunal’s decision. 

8. It is appropriate to paraphrase the oral submissions (made with the assistance of an interpreter) made by the applicants at court.  Mr Devadas addressed the court first.  He said that:

   a)his protection visa application and all related material had been refused;

   b)consequently, he had until the end of January 2014 before it was compulsory for him to leave Australia;

   c)in the interim he had heart issues and had to have surgery; 

   d)treatment was not successful and he does not have plans to continue the treatment;

   e)his visa did not give him work rights; 

   f)other institutions did not help him;

   g)before he could leave Australia he had to resolve his heart issues as a specialist told him that a plane journey would be dangerous;

   h)he therefore applied for a visa to stay for treatment which was rejected two times;

   i)he was then advised that the decisions were not legally followed properly; and

   j)because of financial problems, he was not able to employ a lawyer and he had no knowledge of legal procedures at all. 

9. He besought the court to follow this up.  He sought the court’s help and requested that the court help in some way.

10. Mrs Devadas then spoke.  She said that:

    a)her husband has heart disease and is unable to go to Sri Lanka;

    b)there is no one in Sri Lanka to look after her;

    c)her daughter is here; and

    d)she requested the court to please recommend to the Minister to accommodate them here. 

11. Counsel for the Minister was content to rely upon the written submissions filed.

12. The following recitation of some of the relevant background is taken from and therefore necessarily closely follows the first respondent’s written submissions. 

13. The husband is a 76-year old citizen of Sri Lanka, and his wife is a 66-year old citizen of Sri Lanka.  On 30 January 2014 both of the parties lodged an application for the medical visa.  The wife’s was lodged on the basis that she wanted to support her husband as he underwent medical treatment.

14. On 5 February 2014 a delegate of the first respondent informed the husband that his application for the visa had been refused, and gave reasons for the decision.  Essentially the refusal was because the husband last held a substantive temporary visa on 9 March 2010 and, therefore, did not hold a substantive visa at the time of application, and did not make the visa application within 28 days of ceasing to hold a substantive visa.

15. The timeline and reasons for decision of the delegates in the wife’s case were relevantly identical.

16. Mr and Mrs Devadas each applied for merits review to the Tribunal, and they attended the hearing together.  The evidence they gave was that they entered Australia on 9 December 2009 holding visitor visas which expired three months later in about March 2010.  They applied for the visa presently the subject of application on 4 February 2014 and were on bridging visas at the time of application.  Mr Devadas applied for a protection visa in about January 2010 which was refused because his claims were not accepted.  The protection visa was not refused in connection with meeting relevant health criteria.

17. The Tribunal’s decision is at CB83-85 (Ms Devadas) and CB96-98 (Mr Devadas), although the relevant extracts of the regulations are set out thereafter. 

18. The Tribunal set out a summary of the application for review at paragraphs 1-9.  Beyond the matters to do with the protection visa to which I have just referred at paragraphs 6 and 7, there is nothing of any moment in that extract.

19. The Tribunal noted at paragraph 10 that the subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.  As the Tribunal observed at paragraph 10:

    The issue in this case is whether the applicant was a holder of a temporary substantive visa at the time of application and does not meet cl.602.212(6) (medically unfit to depart).

20. The Tribunal went on to say at paragraphs 11-13 (CB98 – Mr Devadas):

    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 hold a substantive temporary visa of a specified type.  Where an applicant did not hold a substantive temporary visa, and did not meet cl.602.212(6), certain additional requirements needed to be met.  These are that the last substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

    To meet the requirements of cl.602.212(6), an applicant must, among other things, have applied for a permanent visa while in Australia and appear to have met all the criteria for the grant of that visa, other than the public interest criteria related to health.  While in Australia, the applicant applied for a protection visa, but the visa was refused because the claims were not proven: a reason unrelated to his health.  Accordingly, cl.602.212(6)(d) was not met, and, as a result, he did not meet cl.602.212(6) as a whole. 

    In the present case, the applicant does not meet cl.602.212(6), 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 the circumstances, the applicant must meet the schedule 3 criteria 3001, 3003, 3004 and 3005, which were extracted in the attachment to this decision.

21. The Tribunal went on to note that to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day.  The Tribunal said at paragraphs 14-15:

    The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.  In this case, the applicant last held a substantive visa (subclass 676 tourist visa) in March 2010 and did not apply for his subclass 602 visa until 4 February 2014, more than 28 days after his last substantive visa had expired. 

    As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.  For these reasons, the applicant does not satisfy cl.602.213.

22. On this footing the Tribunal went on to dismiss the application. The Tribunal also discussed the applicant’s case for ministerial intervention pursuant to s.351 of the Migration Act 1958.  The Tribunal declined to refer the matter to the Minister but noted that the applicants could still make a request directly.  The Tribunal referred in paragraph 14 to the relevant day as defined in cl.3001(2). 

23. The written submissions of the first respondent do not go into much detail as to the Tribunal’s observations.  It is certainly the case that the Tribunal decided what visas were held by the visa applicants, when they ceased and when the application was made.

24. I confess I find the interrelationship between cl.602.213(5) and its interaction with schedule 3 somewhat difficult.  It would seem that pursuant to cl.3001(2)(c) the relevant day would be 28 days after the last day the applicants held a substantive visa, ie, March 2010. 

25. Pursuant to cl.3004, however, an applicant who ceases to hold a substantive visa after 1 September 1994, as a result of factors beyond their control (to the Minister’s satisfaction), and who meets certain other criteria, may comply with that clause.

26. Since no argument has been addressed to the court about this aspect of the matter, I propose to give the parties an opportunity to put further submissions to the court about it.  On the face of it, it seems possible that the Tribunal, and indeed the delegate, may have overlooked the possible operation of cl.3004 and its potential impact on this case. 

27. I will hear the parties, accordingly. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 24 November 2015