Dhillon v Minister for Immigration

[2017] FCCA 3165

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3165

Catchwords:
MIGRATION – Application for judicial review – Medical Treatment (Visitor) (Class UB) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Migration Regulations 1994 (Cth), sch.3.

Applicant: JAGDEEP SINGH DHILLON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 41 of 2017

Judgment of: Judge Riethmuller

Hearing date: 10 October 2017

Date of Last Submission: 10 October 2017

Delivered at: Melbourne

Delivered on: 10 October 2017

REPRESENTATION

The Applicant appeared In Person

Advocate for the First Respondent: Ms Tan

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 10 January 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 41 of 2017

JAGDEEP SINGH DHILLON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) made on 20 December 2016 which affirmed a decision of a delegate of the first respondent not to grant the applicant a Medical Treatment visa. 

2. The Medical Treatment visa (subclass 602) is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.  The applicant applied for this visa on 28 June 2016 on the basis that he was suffering from depression said to be because of events whereby he alleged that a migration agent did not properly manage his subclass 457 visa application, resulting in him remaining in Australia unlawfully for a short period of time (see the decision of the Tribunal at para.6).

3. The delegate refused to grant the applicant the visa in July 2016 because the delegate concluded that the applicant did not meet the criteria of subclass 602.213 as he did not satisfy criteria 3001 in schedule 3 of the Migration Regulations 1994.  In short, the visa application is only able to be made by a person who is in Australia on a substantive visa if they make application within 28 days after the last substantive visa ceases or, alternatively, if the person is over 50 years of age and meets other criteria.  In this case, the applicant is aged below 40 years of age and did not make his application for the medical visa until some years after his student visa ceased, approximately four years. 

4. The Tribunal set out the relevant law in its decision saying:

   9.  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), and 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.

   10.  In this instance, the applicant does not meet cl.602.212(6) as he has not turned 50, 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. 

5. The Tribunal went on to formally consider whether criterion 3001 was met, finding:

   11.  In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day.  The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.

   12.  In this case, sub-paragraph 3001(2)(c)(i) applies, as the applicant ceased to hold a substantive visa after 1 September 1994.

   13. The Tribunal finds that the ‘relevant day’ for the purpose of making the visa application is 30 November 2012, the last day that the applicant held a substantive visa.  The visa application was made on 28 June 2016.

   14.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.  Therefore, he fails to meet subclause 602.213(5) and, in turn, he fails to meet cl.602.213 as a whole.

   15.  Based on the findings above, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.

6. The Tribunal affirmed the decision not to grant the Medical Treatment (Visitor) Class UB visa. 

7. The applicant’s grounds for judicial review are as follows:

   1.  I submit that the application has been decided unfairly and my visa should not have refused and the decision was made by the tribunal member and immigration department is made to contrary to natural justice.

   2.  The tribunal and immigration department did not apply procedural fairness to genuine intention and personal medical circumstances.

   3.  Tribunal did not consider my Medical Conditions and genuine reasons behind my visa application.

   4.  Tribunal also did not give me a chance to complete my medical treatment to ensure that I am medically and physically fit to face law court atmosphere in Australia.

8. The matter was brought on for a show cause hearing as it did not appear on the papers that the applicant could ever be entitled to a visa of this category, given his particular circumstances.  The applicant argued that he needed more time to properly put his case to the Tribunal.  However, it is clear that he was given an opportunity to be heard and present arguments on 20 December 2016 (see the decision of the Tribunal at para.5).  In any event, it is apparent, from the visa conditions and the applicant’s circumstances, that he can never succeed in obtaining a visa in this particular category.

9. In the circumstances, I am not persuaded that, on what the applicant has said, he has shown a prima facie or arguable case.  Not only does there appear to be no basis for any of the grounds that he raises, nor that there would ever be any purpose in setting aside this decision and remitting the matter back to the Tribunal member as, on the facts of this case, he can never succeed in obtaining this visa. 

10. In the circumstances I therefore dismiss the application.

    [Further argument ensued]

11. The applicant has been unsuccessful.  Costs ordinarily follow the event.  The Minister seeks costs in the scale amount.  It appears reasonable in this case so I order the costs in the sum of $3,667.00 in favour of the Minister.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 December 2017