FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1156 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of People’s Republic of China - whether criteria for Medical Treatment (Visitor) (Class UB) visa met – whether visa applied for within time limitation from date last substantive visa held – whether discretion to consider special or compelling circumstances – whether evidence of medical conditions from medical officer of the Commonwealth - whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 476 Migration Regulations 1994 (Cth), reg.1.16AA, Schedule 2, cll.602.212, 602.213, Schedule 3, cll.3001, 3003, 3004, 3005 |
| Applicant: | HONG LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 161 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr E Solana |
| 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 30 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 161 of 2016
| HONG LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(delivered ex tempore and later edited)
Introduction
On 8 April 2016 the applicant, Hong Lin (“Ms Lin”) 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 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 & Border Protection (“Minister”) to refuse Ms Lin a Medical Treatment (Visitor) (Class UB) Subclass 602 (“Medical Treatment Visa”) visa under s.65 of the Migration Act.
A copy of the Tribunal Decision dated 8 March…
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Details
- Case
- [2017] FCCA 1156
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia concerning an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant, Ms. Lin, sought a Subclass 602 Medical Treatment visa. The core of the dispute revolved around whether Ms. Lin met the eligibility criteria for this visa, particularly in circumstances where she applied while holding a bridging visa and had a history of being without a substantive visa.
The legal issues before the court were whether the AAT erred in affirming the decision to refuse Ms. Lin's Subclass 602 visa application. Specifically, the court was required to determine if Ms. Lin satisfied clause 602.213 of the Migration Regulations 1994, which involves meeting certain Schedule 3 criteria if the applicant does not hold a substantive visa at the time of application and is medically fit to depart Australia. A key aspect of this determination was whether Ms. Lin met criterion 3001, which requires a visa application to be lodged within 28 days of a defined "relevant day."
The court's reasoning focused on the interpretation and application of the Migration Regulations. The Tribunal had found that Ms. Lin did not meet clause 602.213 because she did not hold a substantive visa at the time of her application and did not meet the exception under clause 602.212(6). Consequently, she was required to satisfy Schedule 3 criteria, including criterion 3001. The Tribunal determined that the "relevant day" for Ms. Lin was 15 March 2010, the expiry date of her last substantive visa. As her application for the Subclass 602 visa was lodged on 17 November 2015, significantly more than 28 days after the relevant day, she failed to satisfy criterion 3001. The court found no error in the Tribunal's application of these regulations to the facts presented.
The Judicial Review Application was dismissed.
The legal issues before the court were whether the AAT erred in affirming the decision to refuse Ms. Lin's Subclass 602 visa application. Specifically, the court was required to determine if Ms. Lin satisfied clause 602.213 of the Migration Regulations 1994, which involves meeting certain Schedule 3 criteria if the applicant does not hold a substantive visa at the time of application and is medically fit to depart Australia. A key aspect of this determination was whether Ms. Lin met criterion 3001, which requires a visa application to be lodged within 28 days of a defined "relevant day."
The court's reasoning focused on the interpretation and application of the Migration Regulations. The Tribunal had found that Ms. Lin did not meet clause 602.213 because she did not hold a substantive visa at the time of her application and did not meet the exception under clause 602.212(6). Consequently, she was required to satisfy Schedule 3 criteria, including criterion 3001. The Tribunal determined that the "relevant day" for Ms. Lin was 15 March 2010, the expiry date of her last substantive visa. As her application for the Subclass 602 visa was lodged on 17 November 2015, significantly more than 28 days after the relevant day, she failed to satisfy criterion 3001. The court found no error in the Tribunal's application of these regulations to the facts presented.
The Judicial Review Application was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Tribunal Decision was relevantly as follows: CONSIDERATION OF CLAIMS AND EVIDENCE6. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant meets the relevant visa criteria. The applicant applied on the basis that she was pregnant and did not wish to leave Australia. She told the Tribunal that she is due on 26 March 2016 and has had 'a bit of depression'. She advised that she is not being treated for the depression and has not been hospitalised during her pregnancy.The applicant's visa status and related requirements7. Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by c1.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.8. In the present case, the applicant does not meet c1.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.Is criterion 3001 met?9. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in c1.3001(2), as set out in the attachment to this decision.10. The applicant entered Australia on a student visa in 2005 and was granted subsequent student visas, the latest of which was valid until 15 March 2010. Subsequent to that, she held a series of bridging visas valid until 27 April 2010. She was then without a visa from that date until 12 August 2011 when she was granted further bridging visas. Between February and June 2012 she was also without a visa, but has held a series of bridging visas since June 2012.11. The relevant day, for the purposes of clause 3001, is thus 15 March 2010. This visa was applied for on 17 November 2015, more than five years later.12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.13. For these reasons, the applicant does not satisfy c1.602.213.14. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.DECISION15. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. The Judicial Review Application is in the following terms:l, I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for medical visa onshore.2. They did not consider the fact that I had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.3. DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.The Grounds of the Application are:1. I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control.2, AAT refused my visa simply because l did not have the visa at the time of the application and did not consider my special situation3, l think AAT and DIBP should grant my 602 visa and they should well consider my special situation.(Copied from the Judicial Review Application without amendment)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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