Dhillon v Minister for Immigration and Border Protection

[2018] FCA 739

FEDERAL COURT OF AUSTRALIA

Dhillon v Minister for Immigration and Border Protection [2018] FCA 739

Appeal from:

Application for leave to appeal: Dhillon v Minister for Immigration and Border Protection & Anor [2017] FCCA 3165

File number(s):

VID 1132 of 2017

Judge(s):

O'CALLAGHAN J

Date of judgment:

16 May 2018

Catchwords:

MIGRATION – application for leave to appeal – where applicant applied for Medical Treatment (Visitor) (Class UB) visa – where applicant applied outside statutory time frame – applicant never eligible to apply

Legislation:

Federal Court Rules 2011 (Cth), r 44.12

Migration Regulations 1994 (Cth), Sch 2, cl 602.213, Sch 3, cl 3001

Date of hearing:

16 May 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Ms E Wilde of Clayton Utz

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

Table of Corrections
24 May 2018	In “Date of Judgment”, the number “17” has been replaced by the number “16”
24 May 2018	In “Date of Order”, the number “17” has been replaced by the number “16”
24 May 2018	In paragraph 1, the number “17” has been replaced by the number “16”
24 May 2018	In the certification clause, the number “17” has been replaced by the number “16”

ORDERS

VID1132 of 2017

BETWEEN:

JAGDEEP SINGH DHILLON
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	16 MAY 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal dated 23 October 2017 be dismissed.

2.The applicant pay the first respondent’s costs to be assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

O’CALLAGHAN J:

1. These reasons for judgment were made ex tempore at the hearing on 16 May 2018 and accompany the orders set out above.

2. In this proceeding, the applicant seeks leave to appeal from the judgment and orders of a Federal Circuit Court judge dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) after a hearing under r 44.12 of the Federal Court Rules 2011 (Cth). The Tribunal affirmed a decision by a delegate of the first respondent (the Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical visa).

3. The applicant appeared this afternoon in person. The applicant speaks fluent English and made helpful submissions in support of his case. As I remarked to the applicant during oral submissions, the court appreciated his courtesy and frankness.

4. The difficulty that the applicant faces in this case is that, by virtue of labyrinthine Migration Regulations 1994 (Cth) (Migration Regulations), he was never eligible to apply for a medical visa. Ms Wilde, solicitor of Clayton Utz, appeared for the Minister, and in carefully prepared and helpful written and oral submissions, took me to the relevant regulations. It is unnecessary to burden these reasons by setting out in detail the regulations. The relevant regulations, which appear under the heading “Provisions with respect to the grant of Subclasses of visas … Subclass 602 - Medical Treatment”, are clause 602.213 (at Schedule 2 of the Migration Regulations) and criterion 3001 of Schedule 3 of the Migration Regulations.

5. Schedule 3 is entitled “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders”. The gist of the point is that the applicant was never entitled to apply for a medical visa, because clause 602.213(5) (when read with schedule 3 criterion 3001(2)(c)(iii)) means that the applicant was bound to have brought his application for a medical visa within 28 days after “the last day when he held a substantive visa”. The applicant candidly conceded to the Tribunal, to the Federal Circuit Court judge and this afternoon to me, that the last substantive visa that he held was a Student Subclass 572 Visa, which ceased on 30 November 2012. His application for a medical visa, having been made in June 2016, was therefore made approximately three and a half years late.

6. There is no provision in the Migration Regulations for an extension of time.

7. In those circumstances, the Tribunal and the Federal Circuit Court judge were both correct to hold that the applicant was not, and never could have been, eligible to have applied for a medical visa, and both the Tribunal and the Federal Circuit Court judge were correct to dismiss the applicant’s applications.  Accordingly, the court will order:

   (1)The application for leave to appeal dated 23 October 2017 be dismissed.

   (2)The applicant pay the first respondent’s costs to be assessed or agreed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        16 May 2018