Karzi v Minister for Immigration
[2018] FCCA 2472
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARZI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2472 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Application by applicant for a Medical Treatment (Visitor) (Subclass 602) visa – applicant asserts jurisdictional error by Administrative Appeals Tribunal in affirming Delegate’s decision not to grant to him a Medical Treatment (Visitor) (Subclass 602) visa – applicant needs an extension of time of 14 days under s.477 of the Migration Act 1958 (Cth) to make his application to this Court – applicant could not satisfy criterion 3001 under the Migration Regulations 1994 (Cth) in that he was 42 months late in making his application for the Medical Treatment (Visitor) (Subclass 602) visa – applicant has no reasonable prospects of success for his substantive Grounds – a grant of extension of time would therefore lack any utility – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30, 477 Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 Singh v Minister for Immigration and Border Protection [2017] FCA 525 |
| Applicant: | MOHD YOUNAS KARZI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 287 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Pinder |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application seeking an extension of time under s.477(2) of the Migration Act 1958 (Cth) and filed by the Applicant in this Court on 1 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 287 of 2017
| MOHD YOUNAS KARZI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Canada aged 36 years, having been born on 15 April 1982.
By Application filed in this Court on 1 February 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 14 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 August 2016 refusing to grant to him a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa).
The Application was filed 14 days outside the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (the Act). Accordingly the Applicant needs an extension of time under s.477(2) of the Act. He has applied for an extension and given the ground as being that he was in the Wesley Hospital in Ashfield during the 35 day period. The Minister has responsibly conceded that the delay is moderate and that it has been adequately explained by the period of hospitalisation for which the Applicant had provided affidavit evidence. However, the Minister continued to oppose any extension of time being granted on the basis that the merits of the Application are such that it would not be in the interests of the administration of justice to extend time.
Background
An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: see cl.602.211 in Sch.2 to the Migration Regulations 1994 (Cth) (Regulations). The Applicant applied for the Medical visa in Australia on 24 July 2016, seemingly on the basis that he required treatment for a psychiatric condition involving depression and anxiety and post-traumatic stress disorder. The medical care proposed would take place during the period 26 July 2016 to 26 July 2017.
The Applicant’s last substantive temporary visa had been an Electronic Travel Authority (Visitor) (Subclass 976) visa (Visitor visa) which had ceased on 10 January 2013. The Visitor visa was temporary as its purpose, as expressed by cl.976.222 of Sch.2 to the Regulations, was to apply to a person who intended only to visit Australia temporarily for tourism purposes. Subclause 976.511 permitted the holder of a Visitor visa to travel to and enter Australia on multiple occasions within 12 months from the date of the grant of the Visitor visa or within the life of the holder’s passport, whichever was the shorter, and therefore was a substantive temporary visa (see the definition of substantive visa in s.5 of the Act and temporary visa in s.30(2)(a)).
Grounds for the Grant of a Medical Visa Under Subclass 602
As at the date of decision the Applicant had to satisfy cl.602.213 which provided as follows:
602.213
(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.
(emphasis added)
As the Applicant did not hold a substantive temporary visa at the time of his application for the Medical visa on 24 July 2016 and could not meet the requirement of cl.602.212(6)(b) of Sch.2 to the Regulations in that he had not turned 50 years of age, it followed, by force of cl.602.213(3) that cl.602.213(5) applied.
Consequently, it was necessary for him to satisfy Criterion 3001 in Sch.3 to the Regulations. Relevantly, Criterion 3001 required that his application for the Medical visa must have been made within 28 days after the “relevant day”, which was the last day on which he held the substantive temporary visa, namely 10 January 2013: see Criterion 3001(1) and 3001(2)(c)(iii).
Unfortunately for the Applicant he was some 42 months or three years and six months late when he applied for the Medical visa on 24 July 2016. He was required to apply within 28 days after 10 January 2013, being 7 February 2013, but did not make such an application until 24 July 2016.
Decisions of Delegate
In her Decision Record of 3 August 2016, the Delegate had regard to cls.602.213 and 602.212(6) of Sch.2 to the Regulations and Criterion 3001 in Sch.3. She was satisfied that the Applicant last held a substantive temporary visa on 10 January 2013 and had applied for the Medical visa on 24 July 2016. In these circumstances the Delegate found that the Applicant did not satisfy cl.602.213(5) because he could not satisfy Criterion 3001. Accordingly, the Delegate refused to grant the Medical visa to the Applicant.
Decision of Tribunal
The Applicant applied for merits review of the adverse decision of the Delegate on 8 August 2016 and appeared at a hearing before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from a close friend of the Applicant, namely Ms Catherine Swan. I note that at [11] of its Decision Record the Tribunal recorded that both the Applicant and Ms Swan appeared to understand and accept that the Tribunal had no discretion to find that the criterion for the grant of the Medical visa had been met in the applicable circumstances.
In the result, the Tribunal was satisfied that at the time of his application for the Medical Visa the Applicant did not hold a substantive temporary visa, did not meet cl.602.212(6)(b) as he had not turned 50 years of age and that he did not satisfy Criterion 3001 because his application for the Medical visa was made on 24 July 2016 and was not therefore made within 28 days of the “relevant day”, being 10 January 2013. Therefore, the Tribunal found that the Applicant did not satisfy cl.602.213 and it affirmed the decision of the Delegate not to grant a Medical visa to him.
Proposed Substantive Grounds of Attack on Tribunal Decision
In his Application to this Court the Applicant sets out discursively over some seven pages various complaints of events subsequent to his claimed arrival in Australia on 10 October 2012 on his Visitor visa. In my view nothing in these complaints constitutes a meaningful assertion that the decision of the Tribunal under review in this proceeding is affected by jurisdictional error. I distil the complaints as substantially comprising the following:
a)the Department of the Minister delayed in processing and finalising his Partner (Subclass 820 / Subclass 801) visa for which he claimed to have applied on 21 February 2013 and was guilty of negligence in that regard and that he had a right to be granted compensation for the Department’s negligence;
b)he wished to bring to the attention of the Court that he had had to live with and face “some extremely unpleasant and traumatic incidents which were caused as a result of events that unfolded in my work place Toll Priority, Erskineville” in around January 2015, where he suffered from harassment and racist and bullying remarks;
c)in November 2015 he was made to lift heavy boxes which caused him spinal injury and he was rushed to the Royal Prince Alfred Hospital at Camperdown by ambulance and continues to suffer from excruciating pain in his back and leg;
d)he has become extremely anxious and depressed;
e)if he has to leave Australia he will lose access to his necessary ongoing medical treatment and the financial aid he is currently receiving, and his life would be ruined;
f)he has been unjustly and inhumanely treated by the Department of the Minister which has failed to take into consideration his exceptional circumstances and failed to recognise the seriousness and severity of his critical and overall situation; and
g)he should be given the right to remain in Australia which has been his home now for the past 4.5 years.
Consideration
In my view none of these complaints would establish that the decision of the Tribunal under review is affected by jurisdictional error. It is clear from the Decision Record of the Tribunal that it discussed with the Applicant and considered the claimed personal circumstances of the Applicant and in particular a range of documents and medical reports concerning his claimed medical condition. However, at [21] of its Decision Record the Tribunal noted that it had explained to the Applicant that these were not factors that the Tribunal had any discretion to consider in coming to its decision.
I consider that the Tribunal was correct in taking the view that it was not entitled to take into account what might be called exceptional circumstances, compelling circumstances, humanitarian circumstances or sympathetic circumstances. It was simply not open to the Delegate or the Tribunal to take such matters into account and the Tribunal had no power to exercise any discretion in the Applicant’s favour for any such reasons.
The fact of the matter is that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse the Medical visa application and the Tribunal was bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18]–[19] per Perram J; Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [5]–[6] per White J and Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 at [14]–[15] per Dowsett J.
In my view, the decision of the Tribunal and its construction of the relevant provisions of the Act and Regulations were correct and none of the Applicant’s substantive Grounds could establish that the Tribunal made jurisdictional error in its application of the relevant statutory provisions governing the grant of a Medical visa.
In these circumstances, the Applicant has no reasonable prospects of success for his substantive Grounds. There would therefore be no utility, and it would not be in the interests of the administration of justice, for there to be an extension of time of 14 days as sought by the Applicant.
A Final Matter
I note for completeness that cl.602.213 was amended by the Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) by repealing cl.602.213(5). These amendments apply to Medical visa applications made on or after 1 July 2017, but not to a Medical visa application which had already been made, as was the case here, prior to that date.
Accordingly, those amendments did not apply to the present Medical visa application and the Applicant in this proceeding needed to satisfy cl.602.213 as in force prior to those amendments: see in particular the decision of Middleton J in Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 at [14] – [16].
Conclusion
The Applicant would fail to establish that the decision of the Tribunal is affected by jurisdictional error and his application for an extension of time filed on 1 February 2017 is to be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 7 September 2018
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