Godfry v Minister for Immigration

[2017] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODFRY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2401

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Sayadi v Minister for Immigration [2015] FCA 1235

SZLNX v Minister for Immigration [2008] FCA 1754
SZLNX v Minister for Immigration & Anor [2008] FMCA 494
Youssef v Minister for Immigration & Anor [2012] FMCA 992

Applicant: DIVYA GODFRY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1369 of 2017

Judgment of: Judge Driver

Hearing date: 29 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Shaw of Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1369 of 2017

DIVYA GODFRY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Ms Godfry, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 April 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Godfry a medical treatment visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 22 September 2017. 

Background

1. Ms Godfry is a citizen of India whose last substantive visa ceased on 10 July 2013.[1]  On 10 January 2017, she applied for the medical treatment visa.[2]  On 13 January 2017, the delegate refused to grant the visa.[3]  On 7 April 2017, the Tribunal affirmed the delegate’s decision.[4] On 4 May 2017, Ms Godfry commenced the current proceedings.

   [1] Court Book (CB) 7, 33 [10]

   [2] CB 7, 33 [10], see Affidavit of Elodie Jane Cheesman affirmed 15 June 2017

   [3] CB 5 - 7

   [4] CB 32 - 36

The Tribunal’s findings

1. The Tribunal identified the issue for determination as being whether Ms Godfry satisfied the requirements of clause 602.213 of the Migration Regulations 1994 (Cth) (Regulations).[5]

   [5] CB 33 [6]

2. The Tribunal noted that Ms Godfry’s last held substantive visa (being a TU-573 visa) expired on 10 July 2013, and that she applied for the medical treatment visa on 10 January 2017.[6]  The Tribunal found that Ms Godfry did not meet clause 602.212(6) of the Regulations, did not hold a substantive temporary visa at the time of the application, and that her last-held substantive visa was not a Subclass 403 or 426 visa.[7]

   [6] CB 33 [10]

   [7] CB 33 [8]

3. The Tribunal then…