Kaudeerally v Minister for Immigration
[2017] FCCA 1794
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUDEERALLY v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1794 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of delegate not to grant a Medical Treatment visa (Subclass 602) – applicant made application for medical treatment visa 5½ years after the time she was required to apply for it – grounds relied on by applicant invoke merits review attack on Tribunal decision not available in this Court – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30, 359A Migration Regulations 1994 (Cth) |
| Cases cited: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 |
| Applicant: | POORNIMAH KAUDEERALLY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1971 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr L Leerdam |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 25 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1971 of 2016
| POORNIMAH KAUDEERALLY |
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 female citizen of Mauritius aged 40 years, having been born on 21 June 1977.
By Application filed in this Court on 25 July 2016 she seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 29 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 8 April 2016 refusing to grant to her a Medical Treatment (Subclass 602) visa (Medical visa).
The Applicant applied in Australia for the Medical visa on 7 April 2016. She had previously entered Australia on 15 April 2008 as the holder of a Vocational Education and Training Sector (Subclass TU572) visa (Student visa) under the Migration Act 1958 (Cth) (Act). This was a temporary substantive visa (see definition of substantive visa and temporary visa in s.5 and s.30(2) of the Act respectively).
The Applicant’s last held Student visa cased on 20 August 2010. At the time of her application for the Medical visa on 7 April 2016 she only held a Bridging visa, which is not a substantive temporary visa.
In her Medical visa application she stated that she would be under medical treatment in Australia for the period from 7 April 2016 to 7 April 2017 for a “heart problem”.
Grounds for the Grant of a Medical Visa Under Subclass 602
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: cl.602.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
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 her application for the Medical visa on 7 April 2016 and could not meet the requirements stated in cl.602.212(6) in that she neither had turned 50 years of age nor had a written statement from a Medical Officer of the Commonwealth that she was medically unfit to depart Australia, cl.602.213(3) was satisfied so that cl.602.213(5) therefore applied. Consequently it was necessary for her to satisfy criterion 3001 in Schedule 3 to the Regulations.
Relevantly, criterion 3001 required that the Applicant’s application for a Medical visa must have been made within 28 days after the “relevant day” which for the Applicant was the last day when she held a substantive visa, namely 20 August 2010: criterion 3001(1) and (2)(c)(iii).
Decisions of Delegate and Tribunal
Unfortunately for the Applicant, she was some 5½ years late in making her application for a Medical visa. She was required to apply within 28 days after 20 August 2010, when her Student visa ceased, but did not apply for the Medical visa until 7 April 2016.
Accordingly the Delegate and subsequently the Tribunal, in affirming the Delegate’s decision, found that the Applicant did not satisfy criterion 3001 and therefore did not satisfy cl.602.213 and thus did not meet the requirements for the grant of a Medical visa.
I note that the Tribunal’s decision and reasoning were in accordance with the analysis of the relevant regulations and criteria set out in the decision of Dowsett J in Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 (Saifuddin).
I further note that the Applicant appeared at a hearing before the Tribunal on 27 June 2016 to give evidence and present arguments.
Grounds of Attack on Tribunal Decision in this Court
In her Application filed in this Court the Applicant posited the following Grounds for review of the Tribunal’s decision:
1. Needs further test for Cardiologist of heart problem.
2. I need more medical assistance.
3. Provide medical certificate.
Consideration
None of these three Grounds meaningfully assert that the Tribunal’s decision was affected by jurisdictional error. The Applicant was also unable to make any meaningful submissions at the hearing to the effect that the Tribunal decision was affected by jurisdictional error. Rather, these Grounds and the oral submissions which the Applicant did make appeared to invoke a merits review which is not available in this Court.
I further note for completeness that it was not open to the Delegate or the Tribunal to take into account the Applicant’s general circumstances, even if they were compelling or compassionate in nature. The Tribunal had no power to exercise any discretion in the Applicant’s favour for such reasons. The fact of the matter was that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse a Medical visa and the Tribunal 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 [6] per White J and Saifuddin at [14]-[15].
Matter Raised by Minister as Model Litigant
Department of Immigration and Border Protection (Department) records were in evidence in this case at pages 14 and 16 of the Court Book which established that the Student visa granted to the Applicant was in effect until 20 August 2010 and that this was the Applicant’s last substantive visa.
The Delegate in her Decision Record also recorded that:
Departmental records confirm the applicant’s last substantive visa (TU-572) ceased on 20/08/2010.
Nevertheless, the Minister concedes that contrary to the statement made in [9] of the Decision Record of the Tribunal that a copy of the Decision Record of the Delegate was given to the Tribunal by the Applicant, this was not in fact correct.
In these circumstances and to meet any possible suggestion that the expiry date of the Applicant’s Student visa was “information” which was required to be given to the Applicant under s.359A(1) of the Act, the Minister tendered a transcript of the hearing before the Tribunal on 27 June 2016.
That transcript reveals that it was not in contention and was admitted by the Applicant that:
a)She arrived in Australia on 15 April 2008 on a Student visa;
b)The Student visa had already expired when she applied for a Protection visa in 2010;
c)That the Student visa on which she entered Australia was her last substantive visa and it came to an end on 20 August 2010;
d)She applied for the Medical visa on 7 April 2016 some 5½ years after her last substantive visa expired.
Accordingly, my factual finding is that the information that the Applicant’s last substantive visa had expired on 20 August 2010 and the other facts admitted by her as recorded in [21] above was information which the Applicant gave to the Tribunal at the hearing of her application within the meaning of s.359A(4)(b) and therefore s.359A(1) did not apply to such information.
Information concerning the Applicant’s arrival in Australia on a Student visa and its expiry on 20 August 2010 was of a simple and non-complex nature and would have been readily available to the Tribunal from the Applicant’s immigration file with the Department, quite apart from being recorded in the Decision Record of the Delegate. However, the Applicant also readily and truthfully offered and gave this information to the Tribunal in response to non-leading questions from the Tribunal. She thereby “gave” the information to the Tribunal for the purposes of s.359A of the Act. As Heerey J said in relation to the equivalent section of the Act applying to protection visa applications in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at 493 [32]:-
Turning to the Minister’s alternative argument based on s 424A(3)(b), I agree that the appellant “gave” the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal’s questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]-[43]; see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [61].
Conclusion
The Applicant has failed to establish that the decision of the Tribunal was affected by jurisdictional error and the Application filed in this Court on 25 July 2016 is to be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 4 August 2017
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