LIN v Minister for Immigration

[2017] FCCA 2292

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2292

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – The Tribunal correctly applied the relevant law – the criteria to be applied did not involve any consideration of compelling reasons – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.314, 476

Migration Regulations 1994, cl.602.212, 602.213 of Schedule 2, Schedule 3

Applicant: QIULING LIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 903 of 2017

Judgment of: Judge Street

Hearing date: 20 September 2017

Date of Last Submission: 20 September 2017

Delivered at: Sydney

Delivered on: 20 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms E Cheesman
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 903 of 2017

QIULING LIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 March 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The application for the medical visa was made on 18 October 2016. On that occasion, advice by the migration agent assisting the applicant was also lodged in respect of the application for the medical visa.  That was done by a lawyer, Mr Liu Cheng, of Cathay Lawyers, with an address for correspondence at Post Office Box 108, Yagoona NSW 2199. 

3. The application for the medical visa referred to the need for a medical treatment plan to be attached. Part H of the application also included an application checklist for attaching documents. No medical evidence whatsoever was provided in support of the application for the medical visa.

The delegate’s decision

1. The applicant’s last substantive visa ceased on 29 February 2008. The delegate identified the criteria for the grant of the visa under cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), as well as the Schedule 3 criteria.

2. The delegate correctly identified that cl.602.213 of Schedule 2 to the Regulations and the additional public interest criterion 3001 in Schedule 3 to the Regulations, require application to be validly made within 28 days after the day when the last substantive visa ceased to be in effect.

3. The delegate’s decision identified that the last substantive student visa ceased on 29 February 2008. The delegate found the applicant did not hold a substantive visa at the time of the application and accordingly did not meet subclauses 602.213(1) and 602.213(2) of Schedule 2 to the Regulations.

4. The delegate found that the application for the medical visa was received on 18 October 2016, more than the 28 days after the last substantive visa had ceased, in fact, eight years or more thereafter.

5. The delegate found as the medical treatment visa was not validly made within 28 days after the applicant ceased to hold a substantive visa, the applicant did not satisfy the additional public interest criterion 3001 and the criteria of cl.602.213(3), 602.213(4) and cl.602.213(5) of the Regulations. The delegate found the applicant failed to meet the requirements of cl.602.213 of Schedule 2 to the Regulations.

The Tribunal’s decision

1. The applicant applied for review on 7 November 2016. The application for review was again made with the assistance of the migration agent Mr Liu Cheng of Cathay Lawyers. The Tribunal as required to under the Migration Act, invited the applicant by letter dated 16 January 2017 to attend a hearing on 27 February 2017. The applicant attended on that day to give evidence and present arguments.

2. The Tribunal in its reasons identified the background to the application for review.  The Tribunal identified the requirements of cl.602.213 of Schedule 2 to the Regulations. The Tribunal found in the present case that the last substantive visa by the applicant was held on 29 February 2008, and that the current application for a medical treatment (visitor) visa was made on 19 October 2016. The Court notes that the delegate’s reasons were provided to the Tribunal in support of the application for review. 

3. The Tribunal found the applicant did not meet cl.602.212(6) of the Regulations as she did not hold a substantive temporary visa at the time of the application and the last substantive visa was not a Subclass 403 or 426 visa. The Tribunal correctly identified that the applicant must then in those circumstances meet the criteria in Schedule 3, 3001, 3003, 3004 and 3005.

Consideration of criterion 3001

1. The Tribunal turned to the issue of whether the applicant met the first of the criteria, 3001, which required that the application for visa must have been lodged within 28 days of the relevant day.  The relevant day was after the applicant’s last substantive visa expired.

2. The Tribunal noted that at the hearing, the applicant was invited to comment on those circumstances, and that she foreshadowed providing medical reports. The Tribunal provided her until the close of business on 1 March to provide copies of those reports and no such material was provided to the Tribunal. 

3. The Tribunal found the visa application was not made within 28 days of the relevant day, and accordingly, the applicant did not satisfy the criterion 3001. The Tribunal noted it had no power under the Migration Act to waive the requirement that the application be lodged within 28 days of the relevant day, and accordingly, affirmed the decision under review.

Before this Court

1. The application in this Court was filed on 24 March 2017. On 11 May 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit of evidence and submissions.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. The applicant from the bar table made no submissions identifying any argument supporting the grounds in the application or any reason why the Tribunal’s decision was unlawful or unfair. 

2. From the bar table, the applicant confirmed that the migration agent Mr Liu Cheng of Cathay Lawyers was the same lawyer who assisted her lodge the application for the medical visa and the same person who represented her in the application for review. Nothing said by the applicant identified any jurisdictional error. 

3. The grounds in the application are as follows:-

   1. The Tribunal failed to interpret criterion 3001 correctly.

   2. The Tribunal failed to consider compelling reason.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the requirements of criterion 3001 of Schedule 3 to the Regulations and correctly applied the relevant law to the circumstances found by the Tribunal. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the criteria required to be applied by the Tribunal did not involve any consideration of compelling reasons.  Ground 2 fails to make out any jurisdictional error. 

Registered Migration Agent

1. The application to the Court in the present case had no reasonable prospect of success and was doomed to failure at the start. The Court is gravely concerned that a registered migration agent, Mr Liu Cheng of Cathay Lawyers appears to have acted for the applicant in initiating the application for this medical treatment visa, as well as then lodging an application for review on behalf of the applicant before the Tribunal. Further Mr Liu appears to have assisted the applicant, despite not going on the record, in the initiation of proceedings in this Court. 

2. The application for the medical visa, given that the last substantive visa was held in 2008 had no prospect of success, and was on its face vexatious and unreasonable. Assisting the applicant in those circumstances is not conduct which a registered migration agent should have engaged in. The further assistance in the application for review was not conduct that a migration agent should have engaged in. 

3. Assisting the applicant in commencing the proceedings in this Court is not conduct that a registered migration agent should have engaged in. The Court takes into account cl.2.17 in the Code of Conduct for Registered Migration Agents and the obligations under s.314(2) of the Migration Act.

4. It is not for this Court to determine the consequences of the conduct of the registered migration agent beyond flagging that this is clearly a matter in respect of which the conduct of the migration agent should be brought to the attention of the appropriate authorities. 

Conclusion

1. The application fails to make out any jurisdictional error. Accordingly, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  26 September 2017