La v Minister for Immigration
[2016] FCCA 1499
•23 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1499 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – whether criteria for Medical Treatment (Visitor) (Class UB) Subclass 602 visa met – strict time criteria – no discretion to consider compelling circumstances – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration Regulations 1994 (Cth), reg.1.16AA, Sch.2, cll.602.212, 602.213, Sch.3, cl.3001 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Singh v Minister for Immigration & Anor [2015] FCCA 1408 |
| Applicant: | QUOC TUAN LA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 299 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 May and 20 June 2016 |
| Date of Last Submission: | 20 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 23 June 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5800 by 23 July 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 299 of 2015
| QUOC TUAN LA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 2 July 2015 the applicant, Quoc Tuan La (“Mr La”) lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse Mr La a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s.65 of the Migration Act (“Medical Treatment Visa”).
A copy of the Tribunal Decision dated 29 April 2015 is at Court Book (“CB”) 58-60.
Background
The background to the Judicial Review Application is as follows:
a)Mr La is a citizen of Vietnam: CB 3;
b)Mr La’s substantive visa, a subclass 820 visa, ceased on 29 February 2012: CB 25;
c)on 25 September 2014, Mr La lodged an application for the Medical Treatment Visa: CB 1-11;
d)on 26 September 2014, the Delegate refused to grant Mr La the Medical Treatment Visa: CB 30-36, finding that the Mr La’s Medical Treatment Visa application was not lodged within 28 days of his last substantive visa ceasing, and therefore Mr La did not satisfy the criteria in cl.3001 of Schedule 3 of, and cl.602.213(3), (4) and (5) of Schedule 2 of, the Migration Regulations 1994 (Cth) (“Migration Regulations”);
e)on 14 October 2014, the Tribunal received an application from Mr La for review of the Delegate’s Decision: CB 37-38;
f)on 22 April 2015 a Tribunal hearing was held: CB 52; and
g)on 29 April 2015 the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant Mr La the Medical Treatment Visa: CB 58-60.
Legislation relevant to the Medical Treatment Visa criteria
It is convenient at this stage to set out the legislation relevant to the Medical Treatment Visa criteria.
Clause 602.213 of Schedule 2 to the Migration Regulations provides:
(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.
Clause 602.212(6) of Schedule 2 to the Migration Regulations deals with whether an applicant is considered to be medically unfit to depart Australia, and provides as follows:
(6) All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Criteria 3001, being cl.3001 of Schedule 3 to the Migration Regulations, provides:
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa- 1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or
section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa-the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation-the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal 's decision.
Tribunal Decision
In the Tribunal Decision the Tribunal found that:
a)Mr La’s last substantive visa ceased on 29 February 2012: CB 59 at [8];
b)the medically unfit to depart Australia exception in cl.602.212(6) of Schedule 2 to the Migration Regulations did not apply to Mr La: CB 59 at [9];
c)Mr La did not previously hold a subclass 426 or 403 visa: CB 59 at [10];
d)for the purpose of criteria 3001 to Schedule 3 to the Migration Regulations, that the relevant day was 29 February 2012, being the date that Mr La last held a substantive visa: CB 60 at [12], and given that the Medical Treatment Visa application was lodged on 25 September 2014, Mr La did not satisfy criteria 3001 of Schedule 3 to the Migration Regulations or cl.602.213 of Schedule 2 to the Migration Regulations: CB 60 at [12]-[14]; and
e)the above findings meant that the Delegate’s Decision must be affirmed, and the Tribunal did so affirm it: CB 60 at [15]-[16].
The Judicial Review Application and the medical evidence
The Judicial Review Application relies on the following ground:
1. The Tribunal did not consider my evidence for medical treatment visa and did not consider that I had compelling reasons for not holding a substantive visa.
Mr La also applied for an extension of time, but no extension of time is necessary. It is apparent from the letter from the Tribunal to Mr La’s former lawyer dated 4 June 2015 at CB 70 that Mr La was not advised of the Tribunal Decision until 4 June 2015. Therefore, his Judicial Review Application lodged on 2 July 2015 was within time.
The evidence before the Tribunal in support of the Medical Treatment Visa application was in or annexed to the Form 48ME – Application for a Medical Treatment visa, in which Mr La:
a)said that he was a person who was going to undergo medical treatment and attend a medical consultation during the period from 19 September 2014 to 19 September 2015: CB 4-5;
b)when asked to briefly describe the medical treatment in Australia that he had arranged and its estimated cost, said:
Waiting for medical results and further examinations
CB 5;
c)gave as the name of his doctor in his home country who had referred him for treatment in Australia as Dr Anh Nguyen of 167 Palmerston Street, Perth, and did not enter any details for the name of his doctor or hospital in Australia (the net effect being that he in fact failed to give the name of his referring doctor or hospital in Vietnam);
d)sought permission to work on the basis that he needed funds to support living and other expenses, including medical treatment expenses: CB 5;
e)indicated that he expected to incur medical costs or require medical treatment or medical follow-up for a medical condition from a list in the Medical Treatment Visa application form, but did not give any details of what it was that he would be receiving medical treatment or incurring medical costs for: CB 7;
f)indicated that he did not intend to enter a hospital or health care facility while in Australia: CB 7;
g)ticked a box indicating that he had attached written confirmation from a doctor or hospital who would be treating him in Australia stating that they agreed to treat him, that satisfactory arrangements had been made for the payment of all costs associated with the treatment, the nature of the treatment, the admission date (if applicable), the period that he would be under medical care in Australia, and that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment: CB 10;
h)annexed an email to his then solicitor indicating that he had an appointment for counselling at the Victim Support Service on 3 October 2014 (“Counselling Appointment Email”): CB 21; and
i)annexed at CB 23 a letter from Dr Anh Nguyen of the Bulwer Medical Centre (which the letter indicates is an “Accredited General Practice”) dated 22 September 2014 (“Dr Nguyen’s Letter”), the substantive content of which is as follows:
Mr LA has been visiting this practice since August 2011.
Mr LA suffers major reactive depression from alleged maltreatment by his wife and her family.
At present Mr LA is undergoing psychological treatment provided by Victime Support Service, he needs to comply with this therapeutic assistance where the timeframe is at the psychologist’s discretion.
Mr LA is taking anti-depressants.
No written confirmation conforming with the description set out at [11(g)] above was attached to the Medical Treatment Visa application.
On 17 October 2014 the Tribunal sent to Mr La, care of his authorised representative, a letter in which it said:
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.
CB 40.
The Tribunal again wrote to Mr La, care of his authorised representative, on 19 February 2015 advising that it had considered the material before it but was unable to make a favourable decision on that information alone: CB 44. The Tribunal invited Mr La to a Tribunal hearing on 22 April 2015, and requested that any additional documents or information that Mr La may wish to rely on during the Tribunal hearing be provided to the Tribunal by 15 April 2015: CB 44. In response to the Tribunal’s correspondence, it would appear that Mr La provided the Tribunal with:
a)a copy of a letter from the Victim Support Service indicating the outcome of charges brought against Mr Van Danh Pham, namely a $500 fine and court costs: CB 46; and
b)an unsigned statement by Mr La indicating that whilst attending a family occasion he was assaulted by Mr Pham (who is his father-in-law) when Mr Pham swung a jacket around his head, which caught Mr La’s head and caused it to bleed: CB 47-49.
Submissions
Mr La filed no written submissions, although an order was made by a Registrar of this Court on 16 September 2015 requiring him to do so 14 days before hearing.
At hearing, Mr La was self-represented, with the assistance of an interpreter. Mr La made oral submissions to the Court to effect that:
a)his wife had deserted him;
b)he had a medical problem or medical problems which caused him not to be able to sleep; and
c)he wanted to stay in Australia to obtain his medical treatment and to see a doctor here for his medical treatment.
Asked by the Court whether he had any submissions to make with respect to the criteria considered by the Tribunal in determining to affirm the Delegate’s Decision to refuse the Medical Treatment Visa, Mr La said he had no submissions to make.
The Minister filed written submissions in accordance with the Registrar’s order, and, in essence, submitted that there was no jurisdictional error because the Tribunal had correctly interpreted and applied the relevant criteria which mandated that Mr La’s Medical Treatment Visa application had to be made within 28 days of his last holding a substantive visa, and because Mr La had not done so, the Tribunal was correct to affirm the Delegate’s Decision.
Consideration
The Tribunal Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ (“Plaintiff S157/2002”). Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Mr La’s oral submissions at hearing go wholly to matters of merit which it is not for this Court to consider or decide on the Judicial Review Application: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; and see also in the context of an application for a medical treatment visa Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962 at [27] per Judge Nicholls (“Kim”).
In determining whether to grant a visa s.65 of the Migration Act provides that the Minister (here the Tribunal) is required to be satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied, and if so to grant the relevant visa, but if not so satisfied, to refuse to grant the relevant visa.
In this matter, the relevant issue for consideration by the Tribunal was whether Mr La met the criteria of cl.602.213 of Schedule 2 to the Migration Regulations.
The Tribunal specifically made reference to evidence lodged by Mr La concerning his medical condition: CB 59 at [9], namely Dr Nguyen’s Letter and the Counselling Appointment Email. The Court observes that the only evidence which could be considered “medical evidence” is Dr Nguyen’s Letter. Dr Nguyen’s Letter is, however, not helpful to Mr La, in part for the reason outlined by the Tribunal, that it was not, by the time of the Tribunal hearing “of a recent or current nature”: CB 59 at [9], but also because it did not assist the applicant to meet the requirements of cl.602.213(3)(c) of Schedule 2 to the Migration Regulations in relation to cl.602.212(6) of Schedule 2 to the Migration Regulations, because it was not evidence that Mr La was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition evidenced by a written statement to that effect from a medical officer of the Commonwealth. There is no evidence that Dr Nguyen is a medical officer of the Commonwealth as defined in reg.1.16AA of the Migration Regulations, that is, a medical practitioner appointed by writing signed by the Minister to be a medical officer of the Commonwealth for the purposes of the Migration Regulations. None of the other evidence set out above: see [11] above, is medical evidence. Much of it is unsubstantiated assertion by Mr La as to various matters related to his health. It cannot be inferred that the Tribunal failed to take into account Mr La's medical condition or “all of the evidence provided to it”: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ. Indeed, the Tribunal took into account the only medical evidence which was available to it to assist it to determine whether or not Mr La was able to meet the relevant criteria.
Mr La’s evidence may have been relevant to additional criteria for the grant of a Medical Treatment Visa, but it could not assist Mr La in satisfying cl.602.213 of Schedule 2 to the Migration Regulations where the Medical Treatment Visa application was not made within the 28 day time limit under criteria 3001 in Schedule 3 to the Migration Regulations.
The relevant effect of cl.602.213(3) of Schedule 2 to the Migration Regulations is that if Mr La was in Australia at the time of making the Medical Treatment Visa application, did not hold a substantive visa, and was not medically unfit to depart Australia, Mr La needed to satisfy criterions 3001, 3003, 3004 and 3005 in Schedule 3 to the Migration Regulations.
Clause 602.213(5) of Schedule 2 to the Migration Regulations imposed a strict requirement that Mr La satisfy the requirements of criteria 3001 of Schedule 3 to the Migration Regulations. The terms of cl.602.213(5) of Schedule 2 to the Migration Regulations provided the Tribunal with no discretion to consider whether to waive criteria 3001 of Schedule 3 to the Migration Regulations, for example on the basis of any compelling circumstances. In Kim the Court dealt with a very similar case where there was a requirement for an application for a medical treatment visa to be made within 28 days of the last substantive visa expiring. Numerous arguments, many of them merit review arguments rather than judicial review arguments, were put before the Court, but the Court made two primary findings with respect to the issues, namely:
a)that the applicant was unable to meet the strict 28 day time limit because the application for the medical treatment visa had been made outside of that time limit, which there was no discretion to extend: Kim at [22], [31], [36] and [37] per Judge Nicholls; and
b)there was no provision for the consideration of exceptional or like circumstances in relation to the application for a medical treatment visa: Kim at [22] and [37] per Judge Nicholls.
In Singh v Minister for Immigration & Anor [2015] FCCA 1408 (“Singh”) the Court dismissed an application for judicial review in relation to a medical treatment Subclass 602 visa where the application was made outside of the 28 day time limit. The Court found that the Tribunal “was clearly correct to find it was a requirement of the applicant’s being granted a … [medical treatment] visa that the applicant had to hold a substantive visa within 28 days before the date on which the applicant applied for that visa”: Singh at [11] per Judge Manousaridis, and held that the Tribunal had no discretion in relation to the applicant not being able to satisfy the time criteria: Singh at [12] per Judge Manousaridis, noting the comments to the same effect in Kim cited above.
Because Mr La did not apply for the Medical Treatment Visa within 28 days of his last substantive visa ceasing, the Tribunal was correct to find that Mr La did not satisfy the criterion in cl.3001 of Schedule 3 to the Migration Regulations, and therefore did not satisfy cl.602.213 of Schedule 2 to the Migration Regulations, for the purposes of meeting the criteria for the Medical Treatment Visa. The Court further finds, and agrees with the prior decisions of this Court in Kim and Singh, that there was no requirement for the Tribunal to consider what Mr La describes in his ground review at “compelling circumstances”, or what were described in Kim and Singh as “exceptional circumstances”.
It follows from the reasons set out above that the Tribunal undertook its task in accordance with the law as outlined in Plaintiff S157/2002 in that it correctly identified the relevant issue, asked no wrong question, ignored no relevant material, and did not rely on irrelevant material. The Tribunal did not fail to exercise a power, or exercise power beyond the powers given to the Tribunal, under the Migration Act: see Yusuf.
No jurisdictional error was therefore made by the Tribunal in the Tribunal Decision, and the Judicial Review Application must be dismissed. There will be an order accordingly.
At hearing, the Minister indicated that costs in the sum of $5,800 were sought if the Judicial Review Application was to be dismissed. After the Court had explained to Mr La that costs were usually awarded to the successful party and against the losing party in migration proceedings, Mr La made no submissions as to costs. In the circumstances, Mr La as the losing party must pay the Ministers costs. There will therefore be an order that Mr La pay the Minister’s costs in the sum of $5,800.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 23 June 2016