Kaur v Minister for Immigration

The applicant, Ms Kaur, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate's refusal to grant her a Medical Treatment visa. The delegate had refused the visa because Ms Kaur did not satisfy clause 602.213(5) of the Migration Regulations 1994 (Cth), which required her to meet Schedule 3 criteria. Specifically, the delegate found that Ms Kaur had not applied for the visa within 28 days of her last substantive visa, a Student (Subclass 572) visa, ceasing on 30 August 2010.

The primary legal issue before the court was whether the AAT had erred in law in affirming the delegate's decision. This involved determining whether the AAT correctly applied the relevant provisions of the Migration Regulations, particularly clause 602.213(5) and the criteria within Schedule 3, including clause 3001. The court was required to consider the definition of the "relevant day" for the purposes of clause 3001(2) and whether Ms Kaur's application for the Medical Treatment visa was lodged within the prescribed timeframe.

Emmett J reasoned that the AAT had correctly identified that clause 602.213(5) mandated satisfaction of each criterion in clauses 3001, 3003, 3004, and 3005 of Schedule 3. The court accepted the AAT's finding that for the purposes of clause 3001(2), the "relevant day" was the date on which Ms Kaur last held a substantive visa, which was 30 August 2010. As Ms Kaur lodged her visa application on 20 May 2016, it was not made within the 28-day period stipulated by clause 3001. Consequently, the AAT's conclusion that Ms Kaur failed to satisfy clause 3001, and therefore clause 602.213(5), was upheld.

The application for judicial review was dismissed.