Gurung v Minister for Immigration
[2017] FCCA 1741
•26 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GURUNG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1741 |
| 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), s.359A |
| Applicant: | RENU GURUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3415 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3415 of 2016
| RENU GURUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Ms Gurung, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 November 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant Ms Gurung a medical treatment visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 July 2017.
Ms Gurung is a female citizen of Nepal and arrived in Australia on 1 June 2008 as the holder of a student visa.[1]
[1] Court Book (CB) 52.
On 20 May 2016, Ms Gurung applied for a medical treatment (visitor) (class UB) visa on the basis that she required medical treatment for an ischiorectal abscess.[2]
[2] CB 1 - 24.
On 24 May 2016, the delegate refused to grant the visa, finding that Ms Gurung therefore did not satisfy the requirements in clause 602.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 31 - 33.
On 9 June 2016, Ms Gurung applied to the Tribunal for review of the delegate's decision.[4]
[4] CB 35.
On 7 November 2016, Ms Gurung appeared before the Tribunal to give evidence.[5]
[5] CB 60.
On 8 November 2016, the Tribunal affirmed the decision under review.[6]
[6] CB 72 - 76.
Legislative background
The relevant provisions of the Regulations, as set out below, were the same at the time of Ms Gurung’s application for the visa, and at the time of the Tribunal’s decision.
Clause 602.213 relevantly provided:
(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.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
Clause 602.212(6) provided:
Unfit to depart
(6) 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.
Criterion 3001 relevantly provided:
(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; or…
The decision of the Tribunal
The Tribunal found that Ms Gurung was in Australia at the time of the visa application and did not hold a substantive visa at that time, her last substantive visa being a student visa which expired on 2 August 2010[7].
[7] [10].
The Tribunal found that Ms Gurung did not satisfy clause 602.212(6) as she had not yet turned 50.[8]
[8] [11].
The Tribunal found that the last substantive visa held by Ms Gurung was not a subclass 403 or 426 visa.[9]
[9] [12].
For the above reasons, the Tribunal found that Ms Gurung was required to satisfy Schedule 3 criteria 3001, 3004, and 3005 (pursuant to clause 602.213(3)).[10]
[10] [12].
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The “relevant day” in this case was the last day on which Ms Gurung held a substantive visa.[11] The present application was made on 20 May 2016, which was over six years after Ms Gurung’s last substantive visa expired.
[11] [13] - [14].
Accordingly, the Tribunal found that the application was not lodged within 28 days of the relevant day and that Ms Gurung did not satisfy criterion 3001. For these reasons, the Tribunal concluded that Ms Gurung did not satisfy clause 602.213.[12]
[12] [15].
The present proceedings
These proceedings began with a show cause application filed on 5 December 2016. Ms Gurung continues to rely upon that application. There are two grounds in it:
1. The Second Respondent made jurisdictional error by failing to consider the evidence before it.
Particulars
a) The Second Respondent at paragraph 8 has completely disregarded the medical reports demonstrating about the Applicants medical surgery in 2016.
b) The Second Respondent completely overlooked compelling and exception[al] circumstances of the Applicant.
2. The Second Respondent made jurisdictional error by failing to afford procedural fairness.
Particulars
a) The Second Respondent failed give particulars and importance of Schedule 3 issue during the hearing contrary to s359AA of the Migration Act 1958.
b) The applicant was not given additional time to provide further information raised during the hearing.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 17 March 2017.
Only the Minister filed written submissions in accordance with procedural orders made by a Registrar.
I invited oral submissions from Ms Gurung. She told me that she did not want to address the grounds in the application but explained her position as being one in which she wishes to remain in Australia for a further three months in order to complete studies she is currently undertaking. That appears to be the real reason she has brought these proceedings. That, of course, is a matter for her, but the issue for the Court is whether there is any arguable case of jurisdictional error by the Tribunal.
I am satisfied that there is not. The issues raised in the application are adequately addressed in the Minister’s outline of submissions, which I agree with.
Ground 1 asserts that the Tribunal failed to consider Ms Gurung’s medical evidence, and compelling and compassionate circumstances. However, criterion 3001 is a strict, objective criterion. Ms Gurung did not satisfy that criterion, and the Tribunal had no discretion to waive it by considering the medical evidence or Ms Gurung’s compelling and compassionate circumstances.
In circumstances where Ms Gurung was unable to meet criterion 3001, the Tribunal was under no obligation to further consider whether Ms Gurung met other criteria for the grant of the visa. Nonetheless, it is clear that the Tribunal had regard to the documents provided to it during the hearing[13] but these documents were not relevant to issue before it (being whether Ms Gurung met the Schedule 3 criteria).
[13] see [8].
Ground 2 asserts that the Tribunal failed to afford Ms Gurung procedural fairness. The Tribunal complied with its procedural fairness obligations set out in Division 5 of Part 5 of the Migration Act and this ground reveals no error.
There was no information relied upon by the Tribunal which enlivened its obligations under s.359A. While the Tribunal had before it movement records relating to Ms Gurung, the information regarding the date on which she last held a substantive visa was also provided to the Tribunal by Ms Gurung, in the delegate's decision. Accordingly, this information fell within the exception in s.359A(4)(b).
Ms Gurung was invited to and attended a hearing as required under s.360, and she was clearly on notice of the dispositive issues in the review, from the delegate's decision.
I conclude that Ms Gurung is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $2,500. That is below the amount prescribed in the Court scale for a show cause hearing. Ms Gurung did not want to be heard on costs.
I will order that the applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 2 August 2017
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