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 turned to consider whether Ms Godfry satisfied the Schedule 3 criteria, namely criteria 3001, 3003, 3004 and 3005.  The Tribunal found that Ms Godfry had not lodged her medical treatment visa application within 28 days of the relevant day, and therefore did not satisfy criterion 3001.[8]  The Tribunal thus found that Ms Godfry did not meet the requirements for the grant of the medical treatment visa and affirmed the delegate’s decision.[9]

   [8] CB 33 [11]

   [9] CB 33 [12]-[13]

The present proceedings

1. These proceedings began with a show cause application filed on 4 May 2017.  Ms Godfry continues to rely upon that application.  The grounds in it are:

   1.Refusal of Medical treatment visa by the AAT. (Ground 1)

   2.I am undergoing psychiatric treatment and medication due to fear of life. (Ground 2)

   3.No family members to protect me in India. (Ground 3)

   4.I am a divorcee. (Ground 4).

2. The application is supported by a short affidavit filed with it, which attaches a medical report.  I also have before me as evidence the court book filed on 15 June 2017 and the affidavit of Elodie Jane Cheesman made on 15 June 2017, to which are annexed documents establishing the substance of the visa application made by Ms Godfry, although the document constituting the application itself could not be located. 

3. I invited oral submissions from Ms Godfry this morning.  Her circumstances are distressing.  She came to Australia in 2012 as a student but encountered problems in her marriage.  Her husband applied for a protection visa, and Ms Godfry was included as part of his family group.  They have a son together.  Unfortunately, the marriage broke down and Ms Godfry makes allegations of family violence.  Ms Godfry’s husband apparently returned to India with their son without informing Ms Godfry.  She has been left in this country without support and without a clear pathway for her future.

4. Ms Godfry is currently on a bridging visa which has no work rights attached to it.  This increases her difficulty.  She is, in addition, afraid to return to India because of the violence she says she has experienced from her former husband and other concerns relating to what she believes he has been saying about her in India.  While those circumstances are distressing, the Court cannot, in these proceedings, provide a resolution for them.  The grounds of review do not suggest any arguable case of jurisdictional error by the Tribunal.

5. In Sayadi v Minister for Immigration[10], Perram J explained the operation of the visa criteria for a medical treatment visa[11].  He described the operation of the visa criteria as Byzantine which, with respect, I agree.  While Schedule 3 to the Regulations makes provision in criterion 3004 for the establishment of compelling reasons for the grant of a visa, it is necessary for a visa applicant to whom Schedule 3 applies to satisfy all applicable elements of Schedule 3, and if clause 3001 is not satisfied, there is no need for any further consideration, the criteria being cumulative.

   [10] [2015] FCA 1235

   [11] At [17] and [18]

6. In other respects, I agree with the Minister’s submissions in relation to the judicial review application grounds. 

7. I accept that non-satisfaction of criterion 3001 is fatal to the grant of a medical treatment visa.[12]  The Tribunal was bound to refuse Ms Godfry’s application without the exercise of any discretion.

   [12] Sayadi at [18]

8. In any event, none of Ms Godfry’s grounds reveal any jurisdictional error on the part of the Tribunal.

9. Ground 1 is merely a statement of fact and does not reveal an arguable ground of review.

10. Grounds 2, 3 and 4 and the medical report appear to assert compelling and compassionate circumstances for the grant of the visa.  However, no provision of the Migration Act 1958 (Cth) or Regulations permits the Tribunal to waive the timeframe requirements of criterion 3001 or apply any discretionary considerations. Humanitarian considerations are beyond the scope of the proceedings.[13]

    [13] Youssef v Minister for Immigration & Anor [2012] FMCA 992

11. As to Ms Godfry’s statement that she does not have a lawyer to represent her, I note that there is no right to legal representation in proceedings of this kind.[14]

    [14] SZLNX v Minister for Immigration & Anor [2008] FMCA 494 at [6] per Nicholls FM (upheld on appeal in SZLNX v Minister for Immigration [2008] FCA 1754 per Cowdroy J)

Conclusion

1. I conclude that Ms Godfry is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(a)(a) of the Federal Circuit Court Rules2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale at the time the application was filed.  Ms Godfry claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

3. I will order that 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.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       4 October 2017