Kaur v Minister for Immigration

[2017] FCCA 982

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 982

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: AMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3190 of 2016

Judgment of: Judge Emmett

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Ms Ada Wong
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3190 of 2016

AMANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 17 November 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 8 November 2016 (“the Tribunal”) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. On 23 March 2017, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 31 March 2017.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The applicant was unrepresented before the Court this morning and did not require the assistance of an interpreter.

7. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. Rule 44.12(1) allows the Court to dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed.

8. The applicant confirmed to the Court that she had not filed any further documents, either in accordance with the Court’s directions or otherwise.  The applicant confirmed that she continued to rely on the grounds of her initiating application, filed on 17 November 2016. Those grounds are as follows:

   “GROUND 1

   1. As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the Tribunal') stated in paragraph 16, “the tribunal finds that the applicant does not satisfy criterion 3001. As she does not satisfy criterion 3001, the tribunal does not consider it necessary to consider whether she satisfy the criteria in 3003, 3004 and 3005. As she does not satisfy criterion 3001, she is unable to satisfy cl.602.213”. The Tribunal shows unreasonableness in its decision and assessing my compelling and compassionate circumstances which are beyond my control. I have not deliberately manipulated my circumstances to give rise to compelling reasons. I was pregnant and gave birth to baby boy on 19 July 2016. The Tribunal and the department should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.

   2. GROUND2

   As part of the reason for rejecting the claim, the Tribunal stated in paragraph 17, “The submissions state that the applicant, as of 6 June 2016, was pregnant with a history of miscarriage". The Tribunal shows unreasonableness in its decision and assessing my submission, the tribunal is admitting that I have history of miscarriages, which shows that I am not in a position to travel and even still I am not well and suffering from post-natal depression, however, the tribunal and the department has not considered this as compelling circumstances, which shows unreasonableness in the tribunal decision.

   3. I kindly request the Honourable Court to kindly set aside the AAT's decision of dated 8 November 2016.”

   (Emphasis and errors in original)

9. The applicant was given an opportunity to say whatever she wished in support of each of those grounds. The applicant had nothing more to say other than what she had said in the grounds was true and accurate.  The applicant confirmed that she had received and read the first respondent’s submissions.

10. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims, the legislative scheme and the Tribunal’s decision, as follows:

    “Background and the Delegate

    3. The applicant applied for a Medical Treatment visa on 23 May 20 16: CB 1-27. At the time of the application, the applicant held a Bridging visa issued on 1 March 2016: CB 26.

    4. On 24 May 2016, a delegate of the first respondent refused to grant the visa as the applicant did not satisfy cl 602.213(5). That clause required the applicant to satisfy the Schedule 3 criteria. The delegate found that the applicant did not satisfy cl 3001 in Schedule 3 as she had not applied for the Subclass 602 visa within 28 days of the date on which her last substantive visa ceased. The delegate found that the applicant's last substantive visa, a Student (Subclass 572) visa, ceased on 30 August 2010: CB 34.

    The Tribunal

    5. The applicant sought review to the Tribunal (CB 35-48) and provided the Tribunal with a copy of the delegate's decision: CB 45.

    6. The applicant attended the Tribunal hearing held on 5 October 2016 (CB 64-66) and conceded that her last substantive visa ceased on 30 August 2010 (CB 71, [9]).

    7. On 8 November 2016, the Tribunal affirmed the delegate's decision: CB 70-74. The Tribunal found that as the applicant had lodged her visa application in Australia, did not hold a substantive temporary visa at the time of application and was not medically unfit to depart Australia, cl 602.213(5) required her to satisfy each of the criteria in clauses 3001, 3003, 3004 and 3005 of Schedule 3: CB 71, [10].

    8. Clause 3001 required the applicant to have lodged her visa application within 28 days of the “relevant day”. As the applicant ceased to hold a substantive visa on or after 1 September 1994, the Tribunal found that the “relevant day” for the purposes of cl 3001(2) was the date on which the applicant last held a substantive visa, namely 30 August 2010: CB 71, [11]. As the visa application was not made until 20 May 2016, it was not made within 28 days of the relevant day: CB 72, [16]. Accordingly, the applicant did not satisfy cl 3001 and could not meet the requirements of cl 602.213: CB 72, [16].”

11. The Tribunal’s decision record makes clear that the central issue before the Tribunal was whether the applicant met the requirements of cl.602.213 of the Regulations.

12. Clause 602.213(5) of the Regulations required the applicant to satisfy each of the criteria in cls.3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations. In particular, the Tribunal noted that cl.3001 of the Regulations required the applicant to have lodged her visa application within 28 days of the relevant date. The Tribunal found that the applicant’s student visa expired on 30 August 2010, and that the relevant day for the purposes of cl.3001(2) was the date on which the applicant last held a substantive visa, namely 30 August 2010. The Tribunal found that when the applicant had lodged her visa application in Australia on 20 May 2016, she did not hold a substantive temporary visa at the time of application and was not medically unfit to depart Australia.

13. Accordingly, the Tribunal found that the applicant did not satisfy cl.3001, and therefore could not meet the requirements of cl.602.213 of the Regulations.

14. The applicant’s complaint in the grounds of her applications is that the Tribunal did not consider the compassionate and compelling circumstances that the applicant had a history of miscarriages and was not in a position to travel.

15. At the hearing, the Tribunal discussed with the applicant the requirements of cl.602.213 of the Regulations, and in particular, that her last substantive visa had ceased on 30 August 2010. The Tribunal noted the applicant stated that she had been forgetful since having a baby. The Tribunal noted that her present application was made on 20 May 2016. The Tribunal noted that it asked the applicant if there was any further comment or submissions she wished to make, and noted the applicant’s response that her circumstances remained the same.

16. The Tribunal then considered the applicant’s visa status and the related requirements, and whether or not she met the criterion in cl.602.212(6) of the Regulations relating to medical unfitness to depart Australia. Clause 602.212(6)(b) of the Regulation required the applicant to have turned 50. The Tribunal found that since the applicant had not turned 50, she could not meet the criterion in cl.602.212(6)(b) of the Regulations. The Tribunal’s decision that the applicant did not meet the requirements for the grant of a medical visa would appear to be without error.

17. Since the applicant’s visa application was not made within 28 days of the relevant date, being 30 August 2010 (and the applicant did not meet the requirement of cl.602.212(6)(b) of the regulation), the Tribunal concluded that the applicant did not satisfy cl.3001 of the Regulations and therefore, the Tribunal did not have any discretion to grant the visa. 

18. The Tribunal’s findings would appear to be open to it, on the evidence and material before it, and for the reasons it gave. The applicant’s complaints do not appear to identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

19. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

20. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 17 November 2016, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 May 2017