HUANG v Minister for Immigration

[2018] FCCA 1274

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1274

Catchwords:
MIGRATION – Medical treatment (class UB) visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the applicant’s circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

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

Cases cited:

Attorney-General (NSW) v Quin [1990] HCA 21

Applicant: SHENGLONG HUANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2234 of 2017

Judgment of: Judge Smith

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2234 of 2017

SHENGLONG HUANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 June 2017. The Tribunal affirmed a decision not to grant the applicant a medical treatment (class UB) visa. The criteria for the grant of that visa are set out in cl.602 of sch.2 to the Migration Regulations 1994 (Cth). Relevantly, cl.3001(1) of sch. 3 required that the application be validly made within 28 days after the relevant day.

2. Subclauses 3001(2)(c)(ii) and (iv) provided that if the applicant “entered Australia unlawfully on or after 1 September 1994”, the relevant day was “the day when the applicant last entered Australia unlawfully”.  The applicant arrived in Australia on 8 January 2011.  On 14 February 2017 he made an application for a medical treatment visa.  That application was refused by a delegate of the Minister on 2 March 2017.  The applicant applied to the Tribunal for review of that decision.

3. The applicant attended a hearing on 23 June 2017 and the Tribunal made a decision on the same day affirming the delegate’s decision. The Tribunal found that the applicant had entered Australia unlawfully on 8 January 2011. It found at [14] of its reasons that the applicant did not meet cl.602.212(6), which although it did not explain the reasons for its conclusion, it was clearly correct since the applicant gave his date of birth as 1979 and was clearly not 50.

4. The Tribunal also found that the applicant did not hold a substantive temporary visa at the time of the application and that the last visa held by the applicant was not a subclass 403 or 426 visa.  I note that the reference to subclass 426 assumed that such a subclass of visa was still relevant to the decision to be made by the Tribunal, but it was not.  That reference, or the reference to that subclass in cl.602.213(4) of the Regulations, had been removed with effect from November 2016.  Nevertheless, there remained a reference to subclass 403 and as the Tribunal referred to that as well, the erroneous reference to subclass 426 was immaterial.

5. In light of all of those findings, the Tribunal found correctly that the applicant had to meet sch.3 criteria 3001.  In this respect, it found that the relevant day was the day on which the applicant entered Australia unlawfully: namely, 8 January 2011 and that given that the date of the application that was made was outside the 28 days required by cl.3001(1), it affirmed the decision not to grant the applicant a medical treatment visa.

6. The applicant seeks judicial review of that decision.  There are three grounds in the application.  The first is:

   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.

   None of that is relevant to the decision to be made by the Tribunal.  The way in which the criteria for the medical treatment visa works is that in the circumstances of the applicant, given that he did not hold a substantive visa at the time of the application which was made in Australia, his age and the fact that he did not hold a subclass 403 visa prior to the application, meant that he had to make an application for the visa within 28 days of the relevant day.  He did not, thus, his genuine intention and fear of persecution on return to China were irrelevant to the determination by the Tribunal.

7. The second ground is that:

   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

   It is not clear what this means.  The Tribunal refused the visa because the applicant did not satisfy the criteria for the grant of a visa, one of which was the date upon which the application was made.  The applicant’s so-called special situation, just as with his genuine intention and fear of persecution, were irrelevant to that question.

8. The further ground is that:

   I don’t think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia

9. The question of fairness in those circumstances is not a matter for the Court.  The criteria have been set under the power granted under the Migration Act 1958 (Cth) to specify the criterion for the grant of a visa. It is those criterion and not any broad based notions of fairness that determine whether or not an applicant is eligible for the grant of a visa and should be granted one or not.

10. More particularly, it is not a matter for the Court to enquire into the fairness, or otherwise, of the decision so long as that decision has been arrived at in accordance with the requirements of the law: Attorney-General (NSW) v Quin [1990] HCA 21. I am satisfied in this case that those requirements have been met and for that reason, this ground is not made out.

11. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       21 May 2018