Li Lin He v Minister for Immigration
[2006] FMCA 1303
•24 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI LIN HE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1303 |
| MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) |
| Applicant: | LI LIN HE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG2204 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 24 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,600.
The name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2204 of 2005
| LI LIN HE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 22 July 2005 affirming a decision of a delegate of the first respondent finding that the applicant was not entitled to the grant of a Medical Treatment (Visitor) (Class UB) visa.
The applicant, a citizen of the Peoples Republic of China, first entered Australia on a Short Stay Visitor visa on January 2003. She thereafter held a number of visitor visas and bridging visas. Relevantly the applicant sought a Medical Treatment Short Stay Visitor visa on the basis that she suffered from chronic coccyx pain due to an old fracture. Such a visa is for a stay of less than three months.
On 6 October 2004 the Department refused the application for a Class UB visa. It had before it an assessment of the applicant’s medical condition as at 17 September 2004 completed by a Commonwealth Government Medical Officer that indicated that the applicant was fit to travel and had provided no medical documentation and also a letter dated 27 September 2004 from Dr Woo, an orthopaedic surgeon, in relation to the applicant which stated:
She suffers from chronic coccyx pain due to an old fracture.
She has pain on sitting for more than one hour.
She is not fit for long-distance travel by air.
The applicant sought review of the Department’s decision by application lodged with the Tribunal in November 2004. A copy of the medical certificate from Dr Woo was provided to the Tribunal.
The Tribunal wrote to the applicant under s.359A of the Migration Act 1958 (Cth) (the Act) on 23 February 2005 inviting her to comment on the Government Medical Officer’s report which declared her fit to travel and also on the fact that she had not provided the Tribunal with evidence of her ongoing medical treatment or consultation. The letter informed her that this information was relevant to the review because it indicated that she may not meet the time of application requirement for the visa that she sought to visit Australia or remain in Australia as a visitor for the purposes of medical treatment or related purposes.
The migration agent for the applicant responded by letter of 12 March 2005 stating that the report had not taken all the health factors involved into account. The applicant offered to get a second opinion. It was claimed that she had been receiving ongoing treatment from a physiotherapist and that she was unable to tolerate travel by air.
The applicant attended a Tribunal hearing on 1 June 2005. In its reasons for decision the Tribunal outlined the applicant’s evidence at the hearing, in particular her statement that she had injured her coccyx 10 years ago, badly hurt it in about September 2003, visited Dr Woo, had an x-ray and one session of physiotherapy and returned to Dr Woo who suggested rest and painkillers. She told the Tribunal she had not seen Dr Woo or had any other treatment since September 2004.
The Tribunal adjourned the matter for three weeks to allow the applicant to submit further material in relation to possible medical treatment, her ability to support herself during the period of any visit and what she had been doing over the previous ten months.
The applicant provided a written submission on 20 June 2005 that included a letter from Dr Woo dated 17 June 2005 which, apart from a change of the date and a statement that the fracture occurred on 19 July 2003, was in identical terms to the letter of 27 September 2004. The applicant also provided details of her bank account and two statutory declarations in support of her application: one from her de facto partner referring to her injury, its impact and claiming that she had been seeing a specialist and a physiotherapist as well in Australia and that her medical condition had been improving with the help of the doctors; and one from a friend living in the same apartment building also referring to her injury, stating that the deponent was aware that the applicant had been seeing a specialist and seeing a physiotherapist and that the medical condition had been improving with the help of the doctors.
The Tribunal noted that at the time the visa application was lodged the relevant class of visa contained Subclass 675 Medical Treatment Short Stay and Subclass 685 Medical Treatment Long Stay. While the applicant had requested a short stay the Tribunal also had regard to the criteria for the long stay subclass.
The Tribunal found first that while there was an issue as to what class of visa was held by the applicant at the time of application, it treated the application as having been made on 28 November 2003, a time at which the applicant held a substantive visa. On this basis the Tribunal was satisfied that the applicant held an appropriate visa at that date of application and that clause 675.216 was satisfied. It considered clause 675.214 in relation to whether the applicant had adequate funds for personal support. While on the evidence before it the Tribunal was not satisfied that this clause was met, it made no conclusive finding on that point because the decision turned on the application of clause 675.212.
The Tribunal found that the critical criterion for the Subclass 675 visa in this instance was clause 675.212 which had to be satisfied at the time of the visa application. Relevantly, subclause 675.212(2) was as follows:
An applicant meets the requirements of this subclause if the applicant:
(a) seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood in Australia; and
(b) satisfies the Minister that arrangements have been concluded to carry out the treatment.
Under clause 675.221 the applicant was required to continue to satisfy criteria, including the criterion in clause 675.212, at the time of decision. There are identical provisions in relation to Subclass 685.
The Tribunal noted that no claim was made that the applicant came within sub-cls.(3) to (5) of clause 675.212. As there was no material to support the application of those subclauses it found that the applicant did not come within those sub-clauses. The Tribunal then turned to sub-cl.675.212(2). While the reasons for decision refer to “subclause 2 of clause 675.214” it is clear that this is a typographical error as it is apparent from the Tribunal’s decision that it was referring to the requirements of clause 675.212(2) in relation to the applicant providing evidence that she sought to obtain medical treatment and satisfying the Minister (and the Tribunal) that arrangements had been concluded to carry out the treatment.
The Tribunal was not satisfied that the applicant was seeking to obtain medical treatment in Australia. It noted that no information suggesting that this was so was given before or at the Tribunal hearing, that at the hearing the applicant had said that she was not having treatment and that despite an adjournment to enable material on this issue to be presented no such material was produced after the hearing.
In particular, the Tribunal found that Dr Woo had not indicated in his brief report that he was treating the applicant and that there was no evidence of continuing physiotherapy. Rather it had been suggested that the review applicant was “resting”. The Tribunal found that nothing before it showed that “arrangements had been concluded to carry out (medical) treatment”.
The Tribunal referred to the applicant’s claims in relation to fitness to travel, but noted that this issue was not raised directly by
sub-cl.675.212(2). Rather the issues were whether the review applicant was seeking medical treatment and whether the Tribunal was satisfied that arrangements had been concluded to carry out this treatment. As the Tribunal was not satisfied on those two points it was not satisfied that the applicant’s circumstances met clause 675.212 or clause 685.212. On that basis it found that it had no alternative but to affirm the decision under review.
The applicant sought review by application filed in this court on
16 August 2005. She relies on an amended application filed on
21 September 2005. This matter was originally listed for hearing in February 2007. The hearing was brought forward to 31 July 2006. The parties were notified by mail. However on 31 July applicant told the Court that the only notification of the change of hearing date that she had received was a letter from the respondent’s solicitors of 25 July 2006. She sought an adjournment to obtain legal advice. An adjournment was granted. The applicant was ordered to file and serve written submissions.
The applicant today told the court that she had obtained legal advice. However she has not filed and served written submissions. She made oral submissions.
On the material before the court no jurisdictional error has been established.
In the amended application the applicant claimed generally that she suffered from a medical condition and was unable to travel by air and contended that her statement was supported by the letter from Dr. Woo. However, the fundamental difficulty for the applicant is that the issue before the Tribunal was not her fitness to travel but rather, as the Tribunal pointed out, whether she met the criteria for the visa for which she applied, in particular that at the time of application and decision she was seeking to obtain medical treatment and satisfied the Tribunal that arrangements had been concluded to carry out medical treatment. It was because the Tribunal was not satisfied on those points that the applicant was unsuccessful. As contended for by the respondent on the material before me it is apparent that the Tribunal properly applied the correct legislative provisions. The typographical error does not amount to a jurisdictional error. The Tribunal addressed the applicable criterion. Its findings were open to it on the material before it.
As to the specific grounds relied on in the amended application, the first ground takes issue with the conduct of the Department of Immigration claiming that it had:
…made a mess when processing this application, date of application and the reason for the grant of bridging visa and later on the ground for refuse of such application is not clear
This ground, which was not elaborated on in oral submissions, appears to relate to the fact that there was some uncertainty as to what had occurred in relation to the applicant’s immigration status at the time the visa application that was the subject of the review that was lodged. However the Tribunal proceeded on the basis that, for reasons of fairness to the review applicant, the visa application in issue should be treated as having being made at a time when the applicant held a substantive visa. The Tribunal found that clause 675.216 (which dealt with the requirement that the applicant be the holder of a particular kind of visa at the time of application) was satisfied. Hence the applicant was treated by the Tribunal in the manner most favourable to her in relation to her visa status at the time of application. No jurisdictional error is apparent in the manner in which the Tribunal proceeded.
Insofar as the applicant takes issue with other aspects of the conduct of the Department of Immigration (such as the reason for granting a bridging visa) such matters are not relevant to the application for judicial review of the decision of the Tribunal.
The second ground in the amended application is that the applicant:
“has experienced serious physical sufferings in relation to her illness, and discussions between her and her medical specialist were conducted as to whether an operation is more advisable to cure her condition. The conclusion from the doctor is that it is too risky to perform such an operation. The applicant has been seeing the doctor and receiving medical treatment. There is no ground to refuse the application in her case.
Insofar as this ground seeks merits review, merits review is not available in this court. The applicant was unsuccessful because the Tribunal was not satisfied on the material before it that the applicant was seeking medical treatment or that arrangements were concluded to carry out this treatment. Neither of the letters provided by Dr Woo referred to any medical treatment or to any arrangements being concluded to carry out medical treatment, but rather addressed the issue of the applicant’s fitness.
Moreover an adjournment was allowed by the Tribunal for the applicant to provide further evidence. However it was not satisfied by the evidence that she provided that she met this criterion.
I note that the applicant did provide statutory declarations from her de facto partner and a friend suggesting that she had been seeing a specialist and a physiotherapist and that her medical condition had been improving with the help of the doctors. However the Tribunal observed that Dr Woo did not indicate that he was treating the review applicant and that there was no evidence of continuing physiotherapy. The Tribunal findings were open to it on the material before it. Ground 2 does not identify or establish any jurisdictional error on the part of the Tribunal.
In Ground 3 it is contended that the Tribunal overlooked some of the claims the applicant had made and reached a decision due to the failure to “look at” these claims which otherwise would not have been reached. No particulars are provided of this ground.
Insofar as the applicant intends to raise in relation to her fitness to travel, the Tribunal pointed out the distinction between that issue and the criterion in issue before it. No jurisdictional error is established in the manner contended for in ground.
The applicant’s general contention in ground 4 that it is her view that the reasoning and the findings of the Tribunal are incorrect does not identify or establish any jurisdictional error. As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful. There is nothing in the circumstances before the court to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant told the court that she had incurred considerable expense on medical treatment during her many years in Australia, that the court should consider her situation in Australia for “many years” and that she had also had insured expenses on what she described as “documents”. However, the fact that the applicant may have incurred medical or other expenses is not a reason for departing from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
Insofar as the applicant is suggesting a shortage of funds, although it is not entirely clear that that is the case, her impecuniosity would not be a reason for departing from the normal principle, although it would be a matter that may be taken into account by the first respondent in determining when and how to seek to recover such costs. The first respondent seeks costs in the sum of $3,600. I consider that that amount is appropriate in light of the nature of this and other similar matters.
Finally, the name of the first respondent should be amended as requested.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 September 2006
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