Goni v Minister for Immigration

[2017] FCCA 1708

FEDERAL CIRCUIT COURT OF AUSTRALIA

GONI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1708

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), Schedule 2 cl.602, Schedule 3 criterion 3001

Cases cited:

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Applicant: MD OSMAN GONI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4 of 2016

Judgment of: Judge Barnes

Hearing date: 19 July 2017

Delivered at: Sydney

Delivered on: 19 July 2017

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4 of 2016

MD OSMAN GONI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 December 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The Applicant, who was the holder of a Student visa that ceased in 2011 (and of subsequent bridging visas), applied for a Medical Treatment visa on 10 September 2015.  He indicated that he would provide supporting medical reports.  However on 14 September 2015 the delegate refused the application, finding that the criteria for a Subclass 602 visa were not met because the Applicant had not made the application within 28 days after his last substantive visa (that is his Student visa) ceased. 

3. The Applicant sought review by the Tribunal.  He provided the Tribunal with a copy of the delegate’s decision and also with medical evidence including medical certificates that related to injuries he had suffered in a motor vehicle accident in 2013 and which addressed subsequent medical, physical and psychological issues. 

4. The Tribunal invited the Applicant to attend a Tribunal hearing.  The Applicant attended the hearing and provided some further medical documentation to the Tribunal in relation to his past condition, surgery and subsequent implications from the injuries he had suffered.  However on 4 December 2015 the Tribunal affirmed the decision not to grant the Applicant a Class UB visa.

5. The Tribunal acknowledged that the Applicant had attended a hearing and had provided copies of medical reports and an imaging request form. However, it stated that the issue before it was whether the Applicant met one of the criteria for the class of visa in issue, being the criterion in cl.602.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which applied to applicants in Australia at the time of the visa application. As the Tribunal stated, this criterion relevantly required that the Applicant, at the time of application, either held a substantive temporary visa or that certain other requirements were met, which, relevantly, included the requirement that the Applicant meet Schedule 3 criterion 3001 (see cl.602.213(3)-(5)).

6. Consistent with cl.602.213(3) the Tribunal found that the Applicant did not meet the medically unfit criterion in cl.602.212(6), did not hold a substantive temporary visa at the time of his application. The last visa he held was not a Subclass 403 or 426 visa (as provided for in cl.602.213(4)). Under cl.602.213(5) he had to meet the Schedule 3 criteria. It explained that criterion 3001 in Schedule 3 to the Regulations required an application for a Medical Treatment visa to be lodged within 28 days of the relevant date which was, in this instance, the date on which the Applicant ceased to hold a substantive visa.

7. The Tribunal recorded that it had explained to the Applicant that it had no discretion in this respect, so that the medical evidence he had provided was not relevant to its consideration. It recorded that he had acknowledged (and this was clearly a reference to the Tribunal hearing) that his last substantive visa was a Student visa that ceased in 2011. It had regard to the fact that he made his application for the Medical Treatment visa on 10 September 2015, which it found was not within 28 days after he ceased to hold a substantive visa. It concluded that the Applicant did not meet criterion 3001 and therefore did not meet the criteria for the visa in cl.602.213. On that basis, as one of the criteria for the visa was not met, the Tribunal affirmed the decision not to grant the Applicant the visa.

8. The Applicant sought review by application filed in this court on 4 January 2016.  There is one ground in the application.  It is that:

   The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

9. The Applicant did not file any amended application or written submissions.  He was given the opportunity today to make oral submissions.  The Applicant tendered a copy of a certificate from an orthopaedic surgeon stating that he had attended the practice on 18 July 2017, and that he would undergo imaging of his right shoulder due to pain and disability and was likely to require further surgery.  A copy of a medical imaging referral form dated 18 July 2017 was also provided.

10. However, as I endeavoured to explain to the Applicant, this court has no power to consider whether or not he should be granted a Medical Treatment visa.  Merits review of the Tribunal decision is not available in this court.  The evidence that the Applicant presented does not in any way go to show that the Tribunal fell into jurisdictional error in making its decision on the basis of the objective criterion that the visa application had to be lodged within 28 days of the Applicant last holding a substantive visa.

11. The Applicant indicated that his concern with the Tribunal decision was that it had failed to consider his medical evidence. However the difficulty that he faces is that, whatever the medical evidence was then or is now, it has not been shown that the Tribunal fell into error in proceeding on the basis that the medical evidence he provided to it was not relevant to its consideration, because he did not meet criterion 3001 in Schedule 3 as required by cl.602.213 in Schedule 2 to the Regulations.

12. There is nothing in the material before the Court to suggest that the Tribunal erred in any way in its consideration of the criteria that were applicable. It properly understood that cl.602.213 applied. It correctly set out the requirements of that criterion. It found that the Applicant was not medically unfit to depart Australia as required by cl.602.212(6). I note in that respect that one of the requirements of that provision is that an applicant has turned 50. In this case, the Applicant, being born in 1983, had clearly not met that requirement which, again, did not turn on or require consideration of medical evidence. The Tribunal properly found that under cl.602.213(5) the Applicant must meet criterion 3001 in Schedule 3. This is not a case in which there is any provision for waiver of such criterion. It has not been established that the Tribunal made an error of law in its approach to the applicable criteria. Nor in these circumstances did it fail to consider an integer of the Applicant’s claims or evidence that was critical to its decision such as to constitute a jurisdictional error (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 per Robertson J).

13. The First Respondent submitted that the Tribunal had complied with Division 5 of Part 5 of the Migration Act 1958 (Cth) (the Act). There is nothing in the material before the Court to suggest that the Tribunal failed to put the Applicant on notice of dispositive issues in a manner constituting jurisdictional error. The delegate’s decision alerted him to the fact that the dispositive issue was the fact that he did not apply for the visa within 28 days after his Student visa ceased in 2011.

14. I accept the First Respondent’s submission that, in this case, there was no need for the Tribunal to comply with the s.359A(1) obligations. The Applicant confirmed at the Tribunal hearing that his last substantive visa ceased in 2011 such that the exception in s.359A(4)(b) of the Act was enlivened insofar as there was other information (such as movement records) that might otherwise have given rise to a s.359A(1) obligation. I also note that the Applicant provided the Tribunal with a copy of the delegate’s decision for the purposes of the review.

15. While I understand the Applicant is concerned that he feels he needs further medical treatment, no jurisdictional error has been established in the Tribunal decision or procedures.  In these circumstances the application must be dismissed.

16. The Applicant has been unsuccessful.  It is appropriate that he meet the First Respondent’s costs.  The amount sought is entirely appropriate in the circumstances of this case, having regard to the relative lack of complexity, compared to other cases of a similar nature.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 21 July 2017