Kim & Ors v Minister for Immigration & Anor
[2013] FCCA 962
•30 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 962 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – no arguable case for relief sought raised in application to the Court – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.44 |
| SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| First Applicant: | YUN JIN KIM |
| Second Applicant: | BONG YONG KIM |
| Third Applicant: | YEAN JI KIM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1186 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 17 July 2013 |
| Date of Last Submission: | 17 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2013 |
REPRESENTATION
| The Applicants: | The first and second named applicants in person and the first named applicant as litigation guardian for the third named applicant |
| Appearing for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application made on 29 May 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first and second named applicants pay the first respondent’s costs set in the amount of $3,326.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1186 of 2013
| YUN JIN KIM |
First Applicant
| BONG YONG KIM |
Second Applicant
| YEAN JI KIM |
Third Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 29 May 2013, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 3 May 2013, which affirmed the decision of the Minister’s delegate not to grant Ms Yun Jin Kim, the first named applicant (“the applicant”), a Medical Treatment (Visitor) visa (“the medical visa”).
The applicants before the Court are Ms Kim, her husband (the second named applicant – “the applicant’s husband”) and their daughter (the third named applicant – “the applicant’s daughter”). All are Korean citizens (CB 17).
Before the Court
The application seeks orders that the Tribunal decision be quashed and that the matter be returned to the Tribunal for reconsideration. The sole ground of the application for judicial review is in the following terms:
“The Tribunal failed to give me the medical treatment visa.”
When the matter first came before the Court, Ms Kim and her husband appeared in person. She was assisted by an interpreter in the Korean language. She was appointed the litigation guardian for her daughter.
The sole ground of the application does not assert jurisdictional error on the part of the Tribunal. Without any such error the applicants would be unable to obtain the relief they seek. The ground is simply a statement that the Tribunal failed to give the applicant the medical visa. At its highest, it is an expression of dissatisfaction with, or a grievance about, the outcome before the Tribunal.
In the circumstances, I determined at the first Court date that it was appropriate to proceed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). However, I also gave the applicants some time to seek legal advice. Before the Court, the applicant said that she had obtained advice from a “migration lawyer”, but could not afford any further legal costs so did not pursue any further legal advice.
I sought to explain that, in essence, the Court could not grant the medical visa. If some “legal error’ was evident in what the Tribunal had done, then the Court may decide to send the matter back to the Tribunal for reconsideration, if there was any useful purpose in doing so.
At that time, I also made orders giving the applicants the opportunity of filing any amended application and evidence in support. Both the applicant and the Minister were given leave to file any written submissions.
Since that time the Minister has filed a bundle of relevant documents (Court Book – “CB”) and written submissions. The applicants have filed nothing further.
The Background
The background to this case can be ascertained from the Court Book. Ms Kim applied for a medical visa on 11 October 2012. She submitted medical certificates in support (CB 1 to CB 10). Under the heading of “Children Included” in the application form, and in answer to the specific question: “Details of any accompanying family members who are included in your passport”, the applicant provided the names and details of her husband, her son and her daughter. [The applicant’s son is not an applicant before the Court. It appears, from what the applicant said to the Court, that he has returned to Korea.]
Relevant to the applicant’s application for the medical visa were the provisions set out at Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In particular, cl.685 and cl.675. [I note the annexures to the Minister’s submissions setting out these provisions as they were at the relevant time.]
Given what is contained in the Court Book, I adopt the Minister’s written submissions, at [5] – [11], as being an accurate reflection of the background to the matter:
“[5] A Delegate of the Minister refused to grant the visa on 17 January 2013 ([CB] 14) because the applicant did not satisfy cl 675.216 or alternatively cl.685.216 [a condition attached to both short stay (Subclass 675) and long stay (Subclass 685) medical treatment visas respectively].
[6] An application for review was lodged with the Tribunal on 14 February 2013 ([CB] 17ff) which purported to add the applicant’s husband, son and daughter ([CB] 18) as review applicants, although they were not applicants in the visa application and hence, they were not the subject of a decision by the Delegate. By letter dated 15 February 2013 ([CB] 27) the Tribunal sent an acknowledgement letter to the applicant advising:
the validity of your application has not yet been assessed. The tribunal can only review a decision if a valid application has been made.
[7] On 19 March 2013 the Tribunal sent a hearing invitation to the applicant ([CB] 29). A hearing was held on 3 May 2013. The applicant, her husband, and 12 year old daughter attended.
[8] The applicant gave evidence. The applicant informed the Tribunal ([CB] 63 [15]) that her son, who had been named as an applicant in the review application, had departed Australia on 6 April 2013.
[9] The applicant brought her passport to the hearing and confirmed that her held last substantive visa was a Subclass 457 visa granted in 2007 which had been valid until 1 March 2011. Since then she had held a number of bridging visas ([CB] 63 [16]). The Tribunal explained to the applicant the effect of the requirements of cl 685.216 and 675.216 and of criterion 3001 of Sch 3 (which provides that the visa applications to which it refers must be lodged within 28 days of the ‘relevant day’ being, in this case, the last day on which the applicant held a substantive visa.) The applicant indicated that she understood.
THE DECISION OF THE TRIBUNAL
[10] The Tribunal made the following findings:
a) The applicant must satisfy the requirements of cl 685.216 for a Subclass 685 visa or 675.216 for a Subclass 675 visa ([CB] 64 [24]).
b) At the time of lodging the visa application the applicant did not hold a substantive visa. Her last held substantive visa had ceased on 1 March 2011 ([CB] 64 [25]).
c) The current visa application was lodged on 11 October 2012 and therefore clearly outside the allowed period of 28 days ([CB] 54 [26]). Furthermore, the exceptions to cl 685.216 set out in cl 685.212(6) and (7) do not apply to the applicant.
d) For the same reasons the Tribunal found the applicant did not meet the requirements for a Subclass 675 visa set out in cl 675.216, which is in identical terms to [cl 685.216] ([CB] 54 [27]).
e) The Tribunal found that there had been no reviewable decision of the Delegate made in respect of the other family members, who were the 2nd, 3rd and 4th review applicants. It thus found it had not jurisdiction in relation to those applicants ([CB] 54 [28]).
[11] The Tribunal affirmed the Delegate’s decision not to grant the first named review applicant a Medical Treatment visa ([CB] 55 [29]).”
[Footnotes omitted. Emphasis in the original.]
Consideration
The applicant and her husband appeared in person at the show cause hearing. They were assisted by an interpreter in the Korean language. Ms E Warner Knight appeared for the respondent Minister.
The issue now is whether the application before the Court raises any arguable grounds for the relief sought.
The applicant put forward the following grievances. One, the Minister’s department did not notify her, nor her husband, that the last substantive visa she (and it appears her husband) held was about to “expire”. That is, that the Minister’s department should have reminded her, or her husband, of when her last substantive visa was about to cease to have effect.
The applicant (and later her husband) said that she and her husband had made a number of applications for visas while in Australia. They said that previously they had been “notified”. It appears, from what both the applicant and her husband put to the Court, that the applicant’s husband has been in Australia for some years, initially on a long term (temporary) work visa. He had obtained sponsorship for this visa on two occasions and some notification had been received from the Department in this regard. It appears that the applicant was granted a similar visa (most probably as his dependent) (CB 39).
It appears that the applicant has not understood the distinction between being notified of the outcome of an application for a visa (including any related sponsorship) and notification of the approaching cessation of the period for which any visa was granted.
There is no relevant general obligation, and certainly no statutory obligation, on the Minister’s department to notify visa holders, such as the applicants, of the impending cessation of their visas.
In any event, the period for which the applicant’s last substantive visa was valid, and the period for which the applicants could stay in Australia, would have been known to the applicants from what was on the face of that visa (see the applicant’s “457” visa at CB 41 – “Permitted to Remain in Australia until 01 MAR 11”).
It was clear that the applicant had made this complaint in an attempt to explain why she made the application for the medical visa some time after the expiry of her last substantive visa.
There are some difficulties in accepting this as a satisfactory explanation. For example, the applicant also told the Court that after the expiry of her substantive visa, and with the advice of a migration agent, the family applied, unsuccessfully, for protection visas.
Whatever the situation here, however, no arguable case is raised by this complaint. The relevant regulatory requirement is clear. There is no discretion given to the Tribunal (nor for that matter the delegate). The relevant medical visa application must be made within 28 days of the expiry of the last substantive visa held by the applicant (see [12] above). The criteria relevant to this class of visa (the medical visa) do not have any scope for the consideration of “exceptional circumstances” as, say, in the case of considering the cancellation of some visas pursuant to s.116 of the Act.
The applicant also complained that her husband had spent some time seeking sponsorship for further extensions of his work visa. Further, their son’s visa had “expired” and he was subsequently “expelled” by the Department. In these matters, it appears that they had the assistance of a migration agent, who, in this regard, the applicant said was also “Korean speaking”. The applicant complained to the Court that the agent knew of the family’s financial difficulties and did “not properly” represent them.
This does not raise an arguable case for the relief sought. Even if the agent had been negligent, that still falls short of the type of conduct (fraud) during the course of the review by the Tribunal that could assist the applicants (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35).
Further, it was not clear whether the migration agent’s alleged conduct was said to have occurred while their application was before the Tribunal, or whether it related to the protection visa and sponsorship matters. There is no mention in the application to the Tribunal, nor otherwise, of any migration agent representing the applicants before the Tribunal.
The applicant also referred the Court to copies of medical certificates, medical reports and pharmaceutical prescriptions reproduced in the Court Book (see CB 8 to CB 10 and CB 44 to CB 46). While such documents may have been relevant before the Tribunal, if the medical visa application had been made “in time”, they cannot assist the applicants before the Court now.
The Court cannot conduct impermissible merits review and determine whether the applicants should be granted visas (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). No legal error is apparent in the Tribunal’s decision. This complaint, also, does not reveal an arguable case.
The applicant’s husband stated that he had been in Australia for fourteen years, and that he had been involved in meat and food export for which he had the necessary “certification”. Further, that there were a “group of people” in Australia who needed his expertise and that, given time, he would be able to organise sponsorship to obtain a visa to remain in Australia.
This, again, reveals the applicants inability to accept the nature of these proceedings before the Court. None of this is relevant to the Tribunal’s finding that it had no jurisdiction in respect of him, nor does it assist in the Tribunal’s finding in relation to his wife. No arguable case is raised here.
Finally, both the applicant and her husband “pleaded” with the Court to consider the applicant’s medical condition and need for further treatment. The Court was also asked to consider the applicant’s daughter’s circumstances. She had been in Australia since she was four years old (she is now 12 years old – CB 3).
Again, this, even at its highest, is another request for impermissible merits review (Wu Shan Liang). However, and I say this for the applicants’ benefit, even if the Court could intervene in this way (which it cannot), the applicants cannot overcome the central, and critical, issue. That is, that the application for the medical visa was not made “in time”, and no discretion exists to “excuse” that.
I can only agree with the Minister that, in the circumstances, the application to the Court does not raise an arguable ground for the relief sought. The sole ground merely expresses disagreement with the Tribunal’s conclusion.
Nor can I see any error in the Tribunal’s decision. The applicants were given the opportunity to attend a hearing to explain their case. The Tribunal set out the “problems” and “great difficulties” with the case and gave the applicants the opportunity to address these.
There are two central findings of the Tribunal. The first is that it had no jurisdiction in relation to Mr Kim and the two children, because there was no reviewable decision in relation to them such as to engage the conduct of any review ([28] at CB 64).
There is no error in that finding. While the applicant may have “intended” to have included them in the application for the visa, it does not appear that she successfully did so. In any event, it was open to the Tribunal to find that no decision had been made by the delegate in relation to them such as to engage the Tribunal’s jurisdiction.
The second set of findings are set out at [26] – [27] (at CB 64) of the Tribunal’s decision record. In essence, the applicant was unable to meet an essential “time of application” criterion. In the applicant’s circumstances, the application for the medical visa needed to have been made within 28 days of her last having held a substantive visa. That was in relation to both the short and long term versions of the medical visa. Her last substantive visa expired on 1 March 2011 (CB 41).
No legal error is apparent here. As noted above, these subclasses of visa did not include any criterion of “exceptional circumstances” and the like. The requirements imposed by the Regulations were strict in terms of the time limit.
Conclusion
No arguable case for the relief sought is raised by the sole ground of the application to the Court. Nor do the applicant’s and her husband’s complaints raise any arguable case for that relief. [In any event, no error is otherwise revealed in the decision record] Therefore the application to the Court should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I will make an order accordingly.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 30 July 2013
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