Hao v Minister for Immigration

[2018] FCCA 443

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAO v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 443

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – applicant not holding a substantive visa within 28 days of applying for the visa – inability to satisfy the essential visa criterion – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)
Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZSRS [2014] FCAFC 16

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: JIE HAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1537 of 2017

Judgment of: Judge Driver

Hearing date: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

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 1537 of 2017

JIE HAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Hao, seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 April 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Hao a medical treatment visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 February 2018. 

2. On 21 December 2016, Mr Hao lodged an application for a medical visa.[1]  Mr Hao applied for the grant of the visa on the basis that he required treatment for “high blood pressure and high blood glucose”.[2] Mr Hao did not submit any evidence in support of his application.

   [1] Court Book (CB) 1-11

   [2] CB 3

3. The last substantive visa that Mr Hao held was a tourist (Class TR) (subclass 676) visa, which ceased on 17 July 2012.[3]  Mr Hao held a number of bridging visas and applied unsuccessfully for a protection visa, of which he then sought review in the former Refugee Review Tribunal and in this Court.[4]  On 19 January 2017, the delegate refused to grant the visa.[5]

   [3] CB 18

   [4] CB 46 at [11]

   [5] CB 22; see also affidavit of Ms Ashworth affirmed 19 February 2018

4. On 9 February 2017, Mr Hao applied to the Tribunal for review of the delegate’s decision.[6]  On 20 April 2017, Mr Hao appeared before the Tribunal with the assistance of a Mandarin interpreter to give evidence and present arguments.[7]  On 24 April 2017, the Tribunal affirmed the decision under review.[8]

   [6] CB 25-26

   [7] CB 39-41

   [8] CB 44-48

Tribunal's decision

1. The Tribunal identified the issue for consideration as whether Mr Hao met the criteria in Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations).[9]  The Tribunal noted that the visa was for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes, and that no documents were provided in relation to Mr Hao’s medical issue, health or treatment.[10]

   [9] CB 45 at [7]-[9]

   [10] CB 45 at [6]

2. The Tribunal identified that clause 602.213 of Schedule 2 to the Regulations applied to an applicant who was in Australia at the time that the visa application was made, and relevantly required:[11]

   a)the applicant to have held a substantive temporary visa at the time of application; or

   b)if he or she did not hold a substantive visa and was not medically unfit to depart Australia under clause 602.212(6), that certain additional requirements were met. 

   [11] CB 45 at [8]

3. The Tribunal identified those requirements as being that the last substantive temporary visa held was not a subclass 426[12] or 403 visa, and that Schedule 3 criteria 3001, 3003, 3004 and 3005 were met.[13]

   [12] The Tribunal’s reference to a subclass 426 visa is incorrect.  The Migration Amendment (Temporary Activity Visas) Regulation 2016 removed the reference to a subclass 426 visa in clause 602.213 with effect from 19 November 2016.  As Mr Hao did not lodge a visa application until 21 December 2016, there was no requirement that the last substantive visa he held was not a subclass 426 visa.  However, as the last substantive visa held by Mr Hao was a subclass 676 visitor visa, the Tribunal’s reference to subclass 426 rises no higher than a typographical error. In any event, nothing turns on the error in the circumstances of this case.

   [13] CB 45 at [8]

4. The Tribunal found that Mr Hao did not meet clause 602.212(6), did not hold a substantive visa at the time of application, and the last such visa was not a subclass 403 or 426 visa.[14] As such, the Tribunal found that Mr Hao was required to satisfy the Schedule 3 criteria 3001, 3003, 3004 and 3005. The Tribunal noted that in order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the “relevant day”, which the Tribunal noted was defined in clause 3001(2) of Schedule 3 to the Regulations as set out in the attachment to the Tribunal’s decision.[15]

   [14] CB 45 at [9]

   [15] CB 46 at [10]

5. The Tribunal took into account Mr Hao’s oral evidence that he last held a substantive visa four years previously, had held bridging visas, had unsuccessfully applied for a protection visa, and had not held any other substantive temporary visa other than the one that ceased on 17 July 2012 as referred to in the delegate’s decision record.[16]  Accordingly, the Tribunal found that Mr Hao last held a substantive visa on 17 July 2012 and that the “relevant day” was therefore 17 July 2012.[17]

   [16] CB 46 at [11]-[12]

   [17] CB 46 at [12]

6. The Tribunal found that the application was made on 22 December 2016[18] and was therefore not made within 28 days of the relevant day. As such, it found that Mr Hao did not satisfy criterion 3001.[19] Accordingly, the Tribunal found that Mr Hao did not satisfy clause 602.213 to the Regulations[20] and affirmed the decision under review.[21]

   [18] CB 46 at [13]

   [19] CB 46 at [14]

   [20] CB 46 at [15]

   [21] CB 46 at [17]

The present proceedings

1. These proceedings began with a show cause application lodged on 17 May 2017.  Mr Hao continues to rely upon that application.  There are six grounds in it:

   1, I disagree with Immigration and AAT’s decision.  They did not consider that I have genuine intention to apply for medical visa in Australia.

   2, I could not apply for medical visa offshore as I have strong fears to return to my home country even though my protection visa has been refused by DIBP.  My compelling reasons for applying onshore has not been well considered by DIBP and AAT.  DIBP and AAT did not give a good consideration of my situation was out of my control.

   3, DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

   [4],    Based on the context of my review statement, I have indicated specifically that I have strong compelling reasons for not holding a substantive visa for subclass 602 at the time of application.  The [T]ribunal has failed to well consider this compelling reason as I indicated explicitly which apparently trigger the legal error against the comprehensiveness and fairness in line with the [T]ribunal s review principle.

   [5],    I don't think the [T]ribunal has taken good account in this critical issue and that is the reason I would urge if any of federal's close attention and reconsideration can be granted in my federal court appeal.

   [6],     I don't think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I do need medical treatment in Australia

   (errors in original)

2. I have before me as evidence Mr Hao’s affidavit accompanying his application and the court book filed on 17 July 2017.  I also received into evidence the affidavit of Lauren Ashworth made on 19 February 2018, the purpose of which was to correct the record in relation to one item of correspondence.

3. Only the Minister prepared written submissions in accordance with the registrar’s orders prior to today’s hearing.  I invited oral submissions from Mr Hao today.  He told me that, in his view, the Tribunal acted improperly.  He told me that the presiding member repeatedly stopped him from speaking by using words and hand gestures.  In his opinion, he was not afforded a fair hearing opportunity.  He sought to explain to the Tribunal his health problem, and he does not consider that he received a fair hearing.  He says that the presiding member expressed sympathy but still cut him off.  Mr Hao says that these complaints could be verified by listening to the sound recording of the Tribunal hearing.  At this stage, neither the sound recording nor a transcript of the Tribunal hearing is in evidence.  I am willing to accept, however, for the sake of the argument that Mr Hao was stopped by the Tribunal member in attempting to inform the Tribunal of his asserted health problems.

4. It is clear from the Tribunal decision that Mr Hao could not qualify for the visa he sought unless he satisfied the subclass 602 visa criteria, including the Schedule 3 criteria. Relevantly, Mr Hao needed to satisfy the Tribunal that he last held a substantive visa within 28 days of applying for the visa currently in issue. It is plain that Mr Hao was unable to persuade the Tribunal that he satisfied that criterion. Indeed, he last held a substantive visa around four years before applying for the medical treatment visa.

5. This presented an insuperable problem for Mr Hao. It is entirely possible that the Tribunal member became frustrated in attempting to explain that to Mr Hao when he wanted to talk about other issues. Given Mr Hao’s inability to satisfy the Schedule 3 criterion, it is unlikely that any procedural unfairness arising out of the Tribunal hearing would go to jurisdiction. Even if it did, it is hard to imagine why the Court would not, in the exercise of discretion, withhold relief, in circumstances where remittal to the Tribunal for rehearing would be entirely futile.

6. I otherwise agree with the submissions of the Minister in relation to the grounds of review advanced. 

Ground 1

1. Ground 1 expresses disagreement with the Tribunal’s decision in that it did not consider that Mr Hao had a genuine intention to apply for a medical visa.  Such a contention is misconceived. Contrary to Mr Hao’s assertion, the genuineness of his intention to apply for the visa and the reasons for his delay are not requirements under the visa criteria and are therefore not relevant considerations. This ground rises no higher than to seek impermissible merits review of the Tribunal’s decision.[22]

   [22] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Grounds 2, 4 and 6

1. Ground 2 contends that Mr Hao’s “compelling reasons” for applying onshore were not considered, namely, that he had “strong fears” to return to his home country.  Ground 4 contends that the Tribunal did not consider Mr Hao’s compelling reasons for not holding a substantive visa at the time of his application for the visa.

2. These grounds are also misconceived. It was not relevant to the Tribunal’s review whether or not there were compelling reasons for applying for the visa onshore, or for Mr Hao not holding a substantive visa. Unlike other regulations that provide for waiver of the Schedule 3 criteria on the basis of compelling reasons, no such waiver exists in relation to clause 602.213(5). The only question for the Tribunal was whether Mr Hao had applied for the medical visa within 28 days of his last substantive visa ceasing. Accordingly, in the absence of any discretion on the part of the Tribunal, Mr Hao’s personal circumstances, compelling or otherwise, were irrelevant to the Tribunal’s decision.

3. Further, to the extent that Mr Hao contends by Grounds 4 and 6 that he was denied procedural fairness by the Tribunal, there is nothing before the Court or on the face of the Tribunal’s decision which supports Mr Hao’s assertion that the Tribunal failed to comply with its procedural fairness obligations as provided in Part 5, Division 5 of the Migration Act 1958 (Cth).

Ground 3

1. Ground 3 contends that the Tribunal should grant the visa and allow Mr Hao to obtain medical treatment in Australia. This is not a proper ground of review and at its highest seeks impermissible merits review.[23]

   [23] Wu Shan Liang at 272

Ground 5

1. Ground 5 contends that the Tribunal failed to “[take] good account in this critical issue” and requests the Court’s “close attention and reconsideration”. As Ground 5 is not particularised, it is unclear which “critical issue” the Tribunal is said to have failed to consider.

2. The failure to consider a critical piece of evidence may give rise to a jurisdictional error.[24]  However, there is nothing before the Court to suggest that the Tribunal overlooked a central piece of evidence, or indeed any item of evidence, that was before it.  The Tribunal considered Mr Hao’s circumstances in accordance with the clause 602 criteria and found that he did not meet clause 602.213.  That finding was plainly open to it on the material before it and no error is revealed in the Tribunal’s reasons by this ground.

   [24] Minister for Immigration v SZSRS [2014] FCAFC 16 at [56]

3. I conclude that Mr Hao is unable to demonstrate an arguable case of jurisdictional error by the Tribunal or one which would cause the Court to provide relief in the exercise of discretion. 

4. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  Mr Hao did not wish to be heard on costs.

6. 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 twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  27 February 2018