GURUNG v Minister for Immigration
[2015] FCCA 1445
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GURUNG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1445 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision– application to show cause – whether applicant has raised an arguable case for the relief he seeks – application for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – whether Tribunal was required to consider the applicant’s medical condition – no arguable case demonstrated – application dismissed. |
| Legislation: Federal Circuit Court Rules2001 (Cth), r.44.12(1)(a) |
| Applicant: | AMRIT GURUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3438 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the First Respondent: | Ms S. Sangha of Mills Oakley Lawyers |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3438 of 2014
| AMRIT GURUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks.
The application in question seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (class UB) (subclass 602) visa (Subclass 602 visa).
The applicant applied for a Subclass 602 visa on 3 July 2014. A delegate of the Minister refused to grant the applicant the visa because the applicant failed to satisfy cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant held a subclass 572 student visa which ceased to have effect on 8 June 2011. Since that time, the applicant has held various bridging visas.
The applicant appeared before the Tribunal on 7 November 2014 to give evidence and present arguments.
To have been granted a Subclass 602 visa, the applicant had to satisfy, among other things, cl.602.213 of the Regulations.
At the time of application to the Tribunal, cl.602.213 provided as follows:
(1) Subclause (2) applies if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant held 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.
(2) The 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.
(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.
In order for an applicant to have satisfied criterion 3001, being one of the criteria cl.602.213(5) required to be satisfied, an application for a Subclass 602 visa must have been lodged within 28 days of the “relevant day”. The expression “relevant day” is defined in subparagraph (2) of criterion 3001 and provides, among other things, as follows:
(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 term “substantive visa” is defined in s.5 of the Migration Act 1958 (Cth) (Act) to mean a visa other than a bridging visa, a criminal justice visa or an enforcement visa.
Turning now to the reasons of the Tribunal, it found, on the basis of material before it, that the applicant:
a)did not hold a substantive visa at the time of application;
b)did not satisfy the exception in cl.602.212(6) of Schedule 2 to the Regulations because the applicant was 28 years old and that exception required an applicant to be at least 50 years old and medically unfit to depart Australia;
c)the last substantive visa held by the applicant was a subclass 572 student visa, not a subclass 426 or 403 visa; and
d)as a result of the findings in (a), (b) and (c) above, cl.602.213(5) of the Regulations applied to the applicant and the applicant was required to meet criteria contained in Schedule 3 of the Regulations, namely, 3001, 3003, 3004 and 3005.
The Tribunal ultimately found that the applicant did not meet criterion 3001 because the last substantive visa held by the applicant ceased to have effect on 8 June 2011, which was greater than the 28 day period allowed. The applicant applied for the Subclass 602 visa on 3 July 2014, three years later. The Tribunal, therefore, affirmed the decision of the delegate of the Minister not to grant the applicant a Subclass 602 visa.
The application filed in this matter contains one ground and it is as follows:
The Migration Review Tribunal refused my [sic] a medical treatment visa because I was on a bridging visa for a long time. This is an error because the tribunal failed to deal with my illness and medical condition.
The applicant, who is not legally represented, submitted to me that he has been really depressed because of the Tribunal’s decision. He said that at the time he applied for the visa he did not know he needed to hold a substantive visa. He submitted he wanted to stay in Australia because of the earthquake that had occurred in Nepal, being the country of his nationality. He also made reference to the potential danger from Maoists still operating in Nepal.
At this point, I asked the applicant whether he was applying for an adjournment because of what he claimed was his depression. He answered he did wish to apply for an adjournment; he asked for one month. He said that during that one month he would amend his application and obtain further documents. When I asked the applicant what he proposed to include in his amended application, he said words to the effect of, “At present, I can’t think of anything.” The applicant also submitted that he had been in Australia on bridging visas and that therefore he has not been in Australia illegally.
The question which I first must consider is whether I should grant the applicant an adjournment. The applicant did not tender any medical evidence about his current mental state or about the impact that such mental state has on his ability to present his case. Nothing in his behaviour before me indicated he had any difficulty in submitting to the Court what he wished to submit. Also, the applicant could point to no utility in my adjourning the matter. The only matter he submitted was that he proposed to obtain further documents and amend his application. As I have already noted, however, he could not tell me what would be included in the amended application. More importantly, however, for the reasons I will briefly relate, the application for review discloses no arguable case for the relief it seeks. For these reasons, I am not satisfied that the applicant has established any ground for obtaining an adjournment of today’s hearing.
I now turn to the question of whether the application raises an arguable case for the relief it seeks. The ground, as I read it, is a complaint to the effect that the Tribunal was wrong not to deal with the illness and medical condition the applicant claimed he suffered. However, the Tribunal was not bound to deal with that issue. The Tribunal found that cl.602.213(5) applied to the applicant and the applicant therefore was required to meet criteria which included criterion 3001.
The Tribunal found the applicant did not meet that criterion because the applicant’s last substantive visa ceased to have effect more than 28 days before the day on which he applied for the Subclass 602 visa. In my opinion, the Tribunal was plainly correct in so concluding and there is no arguable case for suggesting the Tribunal made any error in so concluding. Medical evidence could have been relevant under cl.602.212(6) but only if, among other things, the applicant was over 50 years of age. This matter was adverted to by the Tribunal in its reasons; it found that the applicant was 28 years of age and therefore the matters set out in cl.602.212(6) could not apply to the applicant.
As for the matters that the applicant referred to in his submissions, none of them, I regret, are relevant to the application for review. That Nepal has been the subject of earthquakes is not a matter that was relevant to what the Tribunal did; nor what Maoists did or may do are relevant to what was before the Tribunal and what it had to decide. The fact that the applicant held bridging visas and is therefore lawfully present in Australia is not a matter that was relevant to whether the relevant criteria contained in criterion 3001 were satisfied. What that required was that the applicant hold a substantive visa at the relevant time, and as I have already noted, the expression “substantive visa” is defined in s.5 of the Act to exclude, among other visas, bridging visas.
For these reasons, I am of the opinion that the application discloses no arguable case for the relief it seeks and I therefore propose to order that the application be dismissed and that the applicant pay the Minister’s costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 May 2015
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