GUO v Minister for Immigration
[2018] FCCA 1400
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUO v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1400 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of China – medical treatment visa – whether application to Administrative Appeals Tribunal for review made outside time limitation – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 476 Migration Regulations 1994 (Cth), sch.2, cll.602.212, 602.213, sch3. cll.3001, 3003, 3004, 3005 |
| Cases cited: Brar v Minister for Immigration & Border Protection & Anor (No.2) [2017] FCCA 1538; (2017) 322 FLR 81 Jiang v Minister for Immigration & Anor [2007] FMCA 215 Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 |
| Applicant: | LIANGKANG GUO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 626 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms G Ellis |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5,350 by 29 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 626 of 2016
| LIANGKANG GUO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extempore and later revised)
Introduction
By application filed in this Court on 21 December 2016, the applicant seeks judicial review pursuant to s.476(1) of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 1 December 2016, affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse the grant of a Medical Treatment (Visitor) (Class UB) visa (“Medical Treatment Visa”) to the applicant.
Background
The background to this matter is as follows:
a)on 6 January 2006, the applicant, a citizen of the People’s Republic of China, arrived in Australia as the holder of a Schools Sector (Class TU) (subclass 571) visa. That visa ceased on 17 August 2008;
b)on 4 May 2016, the applicant lodged an application for the Medical Treatment Visa (“Medical Treatment Visa Application”) on the basis that he needed medical consultation with a doctor for a stomach problem. The Medical Treatment Visa Application indicated that the applicant required medical care for the period 1 May 2016 to 1 May 2017: CB 3-14;
c)on 6 May 2016, the Delegate refused the grant of the Medical Treatment Visa: CB 19-24, finding that the applicant did not meet the requirements of cl.602.213 of sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) on the basis that the applicant had applied for the Medical Treatment Visa more than 28 days after his last substantive visa ceased;
d)on 26 May 2016, the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 25-26; and
e)on 1 December 2016, the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Medical Treatment Visa: CB 40-50.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)identified that the issue before it was whether the applicant satisfied the criteria in sch.3, cl.3001 of the Migration Regulations, which required the applicant to have made the Medical Treatment Visa Application within 28 days of the relevant day: CB 44 at [14];
b)found that the applicant did not meet cl.602.212(6) of sch.2 to the Migration Regulations, did not hold a substantive temporary visa at the time of the Medical Treatment Visa Application, and that the last visa held by the applicant was not a subclass 403 or subclass 426 visa: CB 44-45 at [16];
c)considered whether the applicant met the criteria at sch.3, cl.3001 of the Migration Regulations: CB 44-45 at [17]-[20];
d)found that the “relevant day” for the purpose of the criteria at sch.3, cl.3001 of the Migration Regulations was 17 August 2008 (that being the date when the applicant’s last substantive visa ceased) and that, as the Medical Treatment Visa Application had not been lodged within 28 days of that date, the applicant did not satisfy the criteria at sch.3, cl.3001 of the Migration Regulations: CB 45 at [18]-[20];
e)noted that there was no discretion for it to waive the criteria at sch.3, cl.3001 of the Migration Regulations: CB 45 at [20]; and
f)found that the applicant did not meet the requirements for the grant of the Medical Treatment Visa: CB 45 at [22].
Judicial Review Application
The Judicial Review Application sets out the following grounds:
1. I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.
2. MRT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation.
3.I don’t think I have been fairly treated by MRT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia.
It appears that the applicant also relies on the following further grounds that were included in the section of the Judicial Review Application under “final orders sought”:
1. I disagree with Immigration and MRT’s decision. They did not consider that I have genuine intention to apply for medical visa in Australia.
2. They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for refugee and could not returned to my home country. DIBP and MRT did not give a good consideration of my situation was out of my control.
3. DIBP and MRT should granted (sic) my subclass 602 visa application and allow me to conduct my medical treatment in Australia.
On 15 February 2017 a Registrar of this Court made orders (“Registrar’s Orders”) which included the following:
a)that by 30 March 2017 the applicant file and serve any amended application giving complete particulars of each ground of review, and any affidavit containing any additional evidence relevant to the grounds of review; and
b)by 42 days prior to the hearing date the applicant file and serve written submissions.
The applicant did not file any materials pursuant to the Registrar’s Orders. The applicant appeared at hearing, and indicated that he did not propose to make any submissions. When it was explained to him that if he made no submissions as to whether the Tribunal had made an error in the Tribunal Decision it was almost inevitable that the Judicial Review Application would be dismissed, the applicant still opted to make no submissions.
On 2 May 2018 the Minister filed an outline of submissions in accordance with the Registrar’s Orders. As the applicant had made no oral submissions, and the Court had read the Minister’s written submissions prior to the hearing, the Court indicated to Counsel for the Minister that oral submissions were not required.
Consideration
Legislative provisions
Pursuant to s.31(3) of the Migration Act, the criteria for a Medical Treatment Visa include those specified in cl.602.213 of sch.2 to the Migration Regulations. Clause 602.213 of sch.2 to the Migration Regulations relevantly provides that:
(3) Subclauses (4) and (5) apply if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant did not hold a substantive temporary visa at that time; and
(c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4) The last substantive temporary visa held by the applicant was not:
(a) a Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) visa; or
(b) a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(c) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
A “substantive visa” is defined in s.5 of the Migration Act as a visa other than, amongst other things, a bridging visa.
Clause 602.212(6) of sch.2 to the Migration Regulations provides that:
All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Among the criteria referred to in cl.602.213(5) of sch.2 to the Migration Regulations is that set out in cl.3001 of sch.3 to the Migration Regulations, which relevantly provides that:
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
…
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully…
The relevant effect of cl.602.213(3) of sch.2 to the Migration Regulations is that if:
a)the applicant was in Australia at the time of Medical Treatment Visa Application;
b)did not hold a substantive temporary visa at the time of the Medical Treatment Visa Application;
c)was not medically unfit to depart Australia (for the purpose of cl.602.212(6) of sch.2 to the Migration Regulations); and
d)the last substantive temporary visa held was not a subclass 426 or subclass 403 visa,
the applicant needed to satisfy cll.3001, 3003, 3004 and 3005 of sch.3 to the Migration Regulations: see cl.602.213(5) of sch.2 to the Migration Regulations.
It does not appear to be in dispute that the applicant was in Australia at the time of the Medical Treatment Visa Application, did not hold a substantive visa at that time, and that the last substantive visa he had held was not a subclass 426 or subclass 403 visa. Furthermore, the applicant did not satisfy the requirements of cl.602.212(6) of sch.2 to the Migration Regulations in circumstances where there was no evidence to support a contention that the applicant was unfit to depart Australia and the applicant had not turned 50: see cl.602.212(6)(b) and (f) of sch.2 to the Migration Regulations.
Clause 3001(1) of sch.3 to the Migration Regulations required the Medical Treatment Visa Application to be validly made within 28 days of the “relevant day.” “Relevant day” is relevantly defined in cl.3001(2) of sch.3 to the Migration Regulations to be the last day the applicant held a substantive visa. The Tribunal found the “relevant day” here was 17 August 2008. The Medical Treatment Visa Application was made on 4 May 2016, more than seven and a half years after the relevant date, and therefore, on the face of it, did not meet the criteria in cl.3001(1) of sch.3 to the Migration Regulations.
Unlike other criteria that provide for consideration of compelling circumstances, no such qualification exists in relation to cl.602.213(5) of sch.2 to the Migration Regulations. The Tribunal therefore had no discretion to consider whether to waive the criteria in cl.3001 of sch.3 to the Migration Regulations on the basis of any compelling circumstances relating to the applicant: Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962 at [37] per Judge Nicholls. In relation to the applicants claim that he had “compelling reasons” for not holding a substantive visa at the time of the Medical Treatment Visa Application, that was a matter which the Tribunal was not required to consider.
The Tribunal’s finding that the applicant did not meet the requirements of cl.602.213 of sch.2 to the Migration Regulations, and relevantly did not meet cl.3001 of sch.3 to the Migration Regulations, necessarily meant that the Medical Treatment Visa Application could not succeed. In circumstances where the applicant did not satisfy cl.3001 of sch.3 to the Migration Regulations, the Tribunal was not required to consider whether the additional criteria for the grant of the Medical Treatment Visa had been satisfied: Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J; Brar v Minister for Immigration & Border Protection & Anor (No.2) [2017] FCCA 1538; (2017) 322 FLR 81 at [19] per Judge Lucev (and the other cases in this Court there cited).
In any event, even if the Tribunal Decision were to be affected by jurisdictional error (which it is not), relief should be refused in the exercise of the Court’s discretion because there can be no difference to the applicant between his current position and the position he would be in following the grant of any relief because the Tribunal’s affirmation of the Delegate’s Decision to refuse to grant the applicant a Medical Treatment Visa must inevitably remain, as there is no possibility that the applicant can satisfy the criteria for the Medical Treatment Visa. This, therefore, is a case in which remittal should be refused because:
a)“no useful result could ensue”: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or
b)it would “lack utility”: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or
c)it would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J.
It follows from the Court’s consideration set out above that the Court is of the view, and finds that, the Tribunal Decision is not affected by jurisdictional error.
Conclusion and orders
The Court having concluded that the Tribunal Decision is not affected by jurisdictional error, it follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Minister seeks costs in the sum of $5,350. The applicant made no submissions in relation to costs when invited to do so. It follows that costs must follow the event, and there will be an order that the applicant pay the Minister’s costs in the sum of $5,350 by 29 June 2018.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 30 May 2018
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