GADE v Minister for Immigration

[2015] FCCA 3425

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3425

Catchwords:
MIGRATION – Migration Review Tribunal – visa – medical treatment visa.

Legislation:

Migration Act 1958 (Cth), ss.65, 351, 366, 366(1)(b) & 476

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant: PREMALATHA GADE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 353 of 2015

Judgment of: Judge Heffernan

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Adelaide

Delivered on: 21 December 2015

REPRESENTATION

Solicitors for the Applicant: Mr N Sharma for Sharma Lawyers

Solicitors for the Respondents: Ms Tattersall for Sparke Helmore Lawyers

ORDERS

1. The application dated 27 April 2015 is dismissed.

2. The name of the second respondent be amended to Administrative Appeals Tribunal.

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, TWO HUNDRED AND EIGHTY FIVE DOLLARS ($6,285).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 353 of 2015

PREMALATHA GADE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (‘the Act’) for the issue of constitutional writs in respect of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 16 April 2015 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (‘the visa’) under s.65 of the Act.

2. The applicant submits that the Tribunal fell into jurisdictional error in the following ways:

   a)Failing to take into account the applicant’s medical condition;

   b)The refusal by the Tribunal of the applicant’s request for a face-to-face hearing, and the consequent failure by the Tribunal to adjourn the hearing on 2 April 2015;

   c)Failing to take into account all of the evidence provided to the respondent; and

   d)Failing to refer the matter to the Minister for personal intervention pursuant to s.351 of the Act.

3. The fourth ground was not raised in the application filed on 28 April 2015.  On 1 December 2015 I gave the applicant leave to amend the application to include this additional ground.  Counsel for the first respondent quite properly conceded that it did not suffer any prejudice by me allowing the amendment to be made.

Background

1. On 11 February 2015, the applicant applied for the visa.  The basis for the application was that she had sustained a workplace injury in Australia fracturing her left radius and ulnar in July 2014.  She had experienced a post-operative infection at the wound site.  She claimed to require rehabilitation for the injury and told the Tribunal that she would not be able to afford medical treatment if she were to return to India at this time.  At the time of her visa application, the applicant had not held a substantive visa since 15 March 2012.  That fact became pivotal in the reasoning of the Tribunal.

2. The applicant’s visa application was refused by the delegate of the Minister.  The applicant applied to the Tribunal for a review of that decision.  On 6 March 2015, the Tribunal notified the applicant that her matter would be heard in Sydney on 2 April 2015 and invited her to attend.  Later that same day, the Tribunal subsequently issued a further invitation to attend a hearing on 2 April 2015 and changed the mode of the hearing, indicating that it would now take place by telephone.  The solicitor for the applicant wrote to the Tribunal on 15 March requesting a face-to-face hearing.

3. As it turns out, that request, if granted, would have presented a problem for the applicant because she was in possession of a medical certificate stating that she was unfit for work or to travel until after 14 April 2015. Accordingly, the letter also requested that the hearing be adjourned to a time after 15 April 2015.  The Tribunal refused to grant a face-to-face hearing, and refused to grant the adjournment that a face-to-face hearing would have entailed.  The applicant was represented at the Tribunal hearing, but the Tribunal noted in its decision record, her representative did not take part in the proceedings.  As stated above, the Tribunal affirmed the decision of the delegate.

The findings of the Tribunal with respect to the requirements for a Medical Treatment (Visitor) (Class UB) visa

1. The applicant does not argue that the Tribunal was in error in the way it characterised the requirements for the visa.  I will summarise these briefly because they are at the heart of the matter.

2. There is one sub-class to a Class UB visa, namely class 602.  All applicants for a sub-class 602 visa must satisfy the primary criteria.  It was necessary for the applicant to satisfy one of the requirements in sub-clause (2) – (8) of clause 602.12.  The relevant sub-clause was sub-clause (2) which sets out a series of mandatory requirements relating to the medical treatment sought by the applicant.  By reason of sub-clause 602.213, sub-clause (2) of 602.12 could only apply to her if the applicant was in Australia at the time of applying for the visa, and she held a substantive visa at that time and the requirements of 602.12(6), (relating to being medically unfit to travel) were not met by her, and if the last substantive visa held by her was not a 426 or 403 visa, and if she satisfied the additional Schedule 3 criteria 3001, 3003, 3004 and 3005 inclusive.

3. The applicant had not held a 426 or 403 visa, her last substantive visa being a 573 visa that ceased on 15 March 2012.  She did not meet the criteria of clause 602.212(6) inter alia because she was under the age of 50 years.  As a result the applicant had to meet all of the Schedule 3 criteria identified above.  Criterion 3001 stipulates that the visa application must have been lodged within 28 days after the ‘relevant day’.  Applying criterion 3001 to the applicant, the relevant day for her was the last day she had held a substantive visa.  She did not apply for the 602 visa until 11 February 2015, approximately 2 years and 11 months after the subclass 573 visa ceased.

4. Based on the above, the Tribunal found that she could not meet the requirements for the grant of the visa.  Criterion 3001 was mandatory and the applicant could not satisfy it.

5. I turn to consider the grounds argued by the applicant.

Ground 1 - Failure to take into account medical condition

1. Mr Sharma, solicitor for the applicant, argues that there was a failure to take into account the applicant’s medical condition and that this amounts to jurisdictional error.  Expressed somewhat differently, this ground alleges a failure to have regard to a relevant matter.  This ground cannot be sustained.  A consideration of the decision record shows that the Tribunal did take into account the medical circumstances of the applicant.  A summary of the evidence relating to the medical condition and related circumstances of the applicant can be found at paragraphs 17-19 inclusive of the decision record.  Whilst not detailing every single aspect of the material before it, the Tribunal noted the, “large amount of documentary evidence relating to medical conditions from which she suffers”.[1]  There is no reason to infer from the reasons of the Tribunal that it did not have regard to those materials.  The reasons of the Tribunal suggest otherwise. 

   [1]     Court Book (‘CB’) p 209.

2. However, the difficulty for the applicant in making out this ground goes further than this.  As submitted by the first respondent, this was fundamentally a matter that turned on an assessment of whether the applicant met the relevant criteria for the grant of the visa.  For the reasons identified above, if the applicant failed to meet any of the relevant mandatory criteria, the visa application had to fail.  She did not meet the mandatory 3001 criterion.  Mere qualification on that basis of medical requirements was insufficient.  As the Tribunal correctly noted, “even if she met those requirements, it would not assist her in meeting the requirement relating to her visa status at the time of the application”.[2]

   [2]     CB p 210.

3. I find that no jurisdictional error has been established with respect to this ground.

Ground 2 - Failure to grant face-to-face hearing and adjournment

1. The chronology with respect to this ground has been detailed above.  The applicant contends that the failure complained of amounted to a jurisdictional error on the basis of unreasonableness. 

2. Whilst it was not particularised in ground 2, Mr Sharma submitted as an aspect of this ground that as a result of the injury, surgery and subsequent infection, the applicant was not psychologically or emotionally fit to properly present her case at the Tribunal.  He acknowledged there was no evidence before the Tribunal to support this assertion.  No complaint was made in this regard by the applicant herself when she gave evidence to the Tribunal.  He told the Court that it was he who had represented the applicant before the Tribunal.  There is no evidence that he raised any concern of this kind either before or during the Tribunal hearing.  He acknowledged that the medical certificate did not directly assist him with that submission.  He argued that given what was known about the medical history of the applicant, the Tribunal could and should have drawn an inference that this was the case.  I do not accept this submission.  The medical certificate provided indicated that the applicant was, “unable to travel to avoid complications post-surgery…… and is medically unfit to attend work: or travel.”[3]  It did not suggest that the applicant would be in any way unfit to take part in the hearing or to understand the nature of proceedings.  Contrary to the argument put by Mr Sharma, if any inference beyond the face of the medical certificate was open to the Tribunal it was to the opposite effect. 

   [3]     CB p 52.

3. The applicant referred the Court to the decision of the High Court in Minister for Immigration and Citizenship v Li[4] in support of his submission that the decision of the Tribunal not to afford the applicant a face-to-face hearing and an adjournment was unreasonable in the relevant legal sense.  The Tribunal had a discretionary power to order that the hearing take place over the telephone.[5]  The applicant did not suggest otherwise.  I do not accept that the decision of the Tribunal was unreasonable.  In order to establish that the decision of the Tribunal was unreasonable it would be necessary for the applicant to demonstrate that the decision not to adjourn was not open to the Tribunal or was affected by erroneous considerations.[6]  In deciding to exercise the discretion as it did, the Tribunal considered the facts that the presiding member of the Tribunal was in Sydney and the applicant had requested a hearing in Brisbane, additional cost and significant delay would be caused by granting a face-to-face hearing in Sydney, the medical evidence did not suggest that the applicant was not fit to participate in a telephone hearing, or that her participation would in some way be prejudiced by a telephone hearing, and that the substantive issue was the same issue that had been raised when the interview was conducted by the delegate of the Minister.[7]  In the circumstances, it cannot be said that the Tribunal failed to properly consider the request or any matter relevant to it.  It cannot be said that the decision was so unreasonable that no reasonable authority could have made it.[8]

   [4]     Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

   [5] s.366(1)(b) Migration Act 1958; Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [28].

   [6]     Minister for Immigration and Border Protection v Dhillon (supra).

   [7]     CB p 55.

   [8]     Minister for Immigration and Citizenship v Li (supra).

4. I find that no jurisdictional error has been established with respect to this ground.

Ground 3 - Failing to take into account all of the evidence provided to the respondent

1. The Tribunal had regard to the medical evidence,[9] the chronology of the of the applicant’s visa status as it applied to the requirements for the visa,[10] the lengthy written submission provided by the applicant prior to the hearing,[11] and the evidence of the applicant at the hearing.[12]  The applicant has not identified any matter of substance in the evidence of which she says the Tribunal did not have regard.  I have rejected above, the submission that the suggested inference as to her mental and emotional state was open to the Tribunal.  As the first respondent submitted, there is authority for the proposition that it is not necessary for the Tribunal to identify every piece of evidence or contention made by the applicant.[13]  The evidence and submissions in this matter were of a very narrow compass.  There is nothing to suggest that not all relevant evidence and contentions were taken into account.  It was not suggested by the applicant that the evidence relied on by the Tribunal with respect to the date she had last held a substantive visa was incorrect.

   [9]     CB pp 209-210.

   [10]    CB pp 208-209.

   [11]    CB p 208.

   [12]    CB pp 209-210.

   [13]    Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

2. I reject the argument that the Tribunal fell into jurisdictional error by failing to take into account all of the evidence provided to it. 

Ground 4 - Failing to refer the matter to the Minister for personal intervention pursuant to s.351 of the Act

1. The Tribunal noted that the applicant requested she refer the matter for consideration to a “higher official”.[14] The applicant agreed that this was a request for the Tribunal to refer the matter to the Minister for consideration of personal intervention pursuant to s.351 of the Act. It was within the discretion of the Tribunal to make such a referral. The Tribunal gave consideration to this request, and in doing so took into account the medical and personal circumstances of the applicant, as well as the relevant Ministers guidelines for such referrals.[15]  The Tribunal noted that the applicant could herself make a request for personal intervention.  It was submitted on behalf of the applicant that one of the problems the applicant had faced was that at the time of the Tribunal hearing she had already made a request to the Minister for personal intervention and that it had been refused.  This, it was submitted, was a reason that the matter should have been referred.  The applicant accepted that there was no evidence before the Tribunal to this effect.  It was simply never put to the Tribunal.  I am not able to have regard to that matter, which in effect amounted to evidence being given from the bar table.  But I make the observation that had this matter been made known to the Tribunal it would presumably have served only to reinforce in the mind of the Tribunal that it was an appropriate exercise of discretion to decline to refer the matter to the Minister.  My decision with respect to this ground is of course made by reference to the evidence before the Tribunal.

   [14]    CB p 210.

   [15]    CB pp 209-210.

2. I find that no jurisdictional error has been established with respect to this ground.  It was not unreasonable or illogical for the Tribunal to decline to refer the matter to the Minister on the basis of the evidence before it.  In considering this matter, taken as a whole it cannot be said that the Tribunal failed to have regard to the entirety of the claims made by the applicant.

3. Accordingly I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  21 December 2015