Lin v Minister for Immigration
[2017] FCCA 1156
•30 May 2017
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 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Singh v Minister for Immigration & Anor [2015] FCCA 1408 |
| 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 2016 is at Court Book (“CB”) 47-51.
Background prior to the Tribunal Decision
The background prior to the Tribunal Decision is as follows:
a)Ms Lin is a citizen of the People's Republic of China who first arrived in Australia on a student visa in 2005: CB 48 at [10]. Her last substantive visa ceased on 15 March 2010: CB 1;
b)on 17 November 2015, Ms Lin lodged an application for the Medical Treatment Visa: CB 3-13;
c)in order to be granted the Medical Treatment Visa, Ms Lin had to meet the relevant criteria: Migration Act, ss.31(3) and 65(1)(a)(ii). The criteria included cl.602.213 of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), the relevant effect of which was that if Ms Lin was in Australia at the time of application: Migration Regulations, Sch.2, cl.602.213(3)(a), did not hold a substantive visa: Migration Regulations, Sch.2, cl.602.213(3)(b), and did not satisfy the requirement in cl.602.212(6) of Sch.2 to the Migration Regulations by being medically unfit to depart Australia: Migration Regulations, Sch.2, cl.602.213(3)(c), she was required to satisfy criteria in cll.3001, 3003, 3004 and 3005 of Sch.3 to the Migration Regulations: Migration Regulations, Sch.2, cl.602.213(5). Relevantly, cl.3001 of Sch.3 to the Migration Regulations required that the application for the Medical Treatment Visa must have been validly made within 28 days of the "relevant day": cl. 3001(1) of Sch.3 to the Migration Regulations. The definition of "relevant day" in cl.3001(2) of Sch.3 to the Migration Regulations was, in the circumstances of this matter, the last day when Ms Lin held a substantive visa: see Migration Regulations, Sch.3, cl.3001(2)(c) as set out below at [8];
d)on 18 November 2015, the Delegate refused the grant of the Medical Treatment Visa on the basis that Ms Lin did not satisfy cl.602.213 of Sch.2 to the Migration Regulations: CB 26-29. The Delegate found that Ms Lin last held a substantive temporary visa on 15 March 2010, that being a Student (Subclass 571) visa, and therefore did not hold a substantive temporary visa for the purposes of cl.602.213(1) and (2) of Sch.2 to the Migration Regulations at the time of application for the Medical Treatment Visa. The Delegate further found on the available evidence that Ms Lin did not satisfy cl.3001 of Sch.3 to the Migration Regulations, nor the requirements of cl.602.213(3), (4) and (5) of Sch.2 to the Migration Regulations;
e)on 1 December 2015, Ms Lin applied to the Tribunal for review of the Delegate's Decision: CB 30-31;
f)on 2 December 2015, the Tribunal wrote to Ms Lin, by email, to acknowledge receipt of application for review of the Delegate’s Decision: CB 32-33; and
g)on 28 January 2016, the Tribunal wrote to Ms Lin, by email, inviting her to attend a hearing before it scheduled on 8 March 2016: CB 34-37 (“Tribunal Hearing”). Ms Lin attended the Tribunal Hearing as scheduled: CB 41.
Tribunal Decision
The Tribunal Decision was relevantly as follows:
CONSIDERATION OF CLAIMS AND EVIDENCE
6. 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 requirements
7. 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.
DECISION
15. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
The Judicial Review Application
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 situation
3, 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)
Ms Lin filed an affidavit in support of the Judicial Review Application which stated:
I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.
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. 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.
Clause 3001 of Schedule 3 to the Migration Regulations, which is set out as an attachment to the Tribunal Decision at CB 50, relevantly provided as follows at the relevant time:
(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) …; or
(b) …; 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) ….
The Tribunal correctly found that Ms Lin’s last substantive visa had ceased on 15 March 2010, and that her Medical Treatment Visa application lodged on 17 November 2015 was not made within 28 days of the "relevant day" as required by cl.3001(1) of Sch.3 to the Migration Regulations. In that regard, the Tribunal's finding that Ms Lin did not meet the criteria in cl.3001(1) of Sch.3 to the Migration Regulations was free from error, and on the material before it, the only finding open to the Tribunal.
Whether or not there were compelling or special circumstances, or circumstances otherwise beyond the control of Ms Lin, to explain why she did not hold a substantive visa at the time of lodging the application for the Medical Treatment Visa was irrelevant to the issue to be considered by the Tribunal. Clause 602.213(5) of Sch.2 to the Migration Regulations imposed a strict requirement that Ms Lin satisfy the criteria in cl.3001 of Sch.3 to the Migration Regulations, and provided the Tribunal with no discretion to consider whether to waive the criteria: Kim & Ors v Minister for Immigration & Anor [2013] FCCA 962 at [22] and [37] per Judge Nicholls; Singh v Minister for Immigration & Anor [2015] FCCA 1408 at [12] per Judge Manousaridis; La v Minister for Immigration & Anor [2016] FCCA 1499 at [28] per Judge Lucev.
The Tribunal was aware of and specifically made reference in the Tribunal Decision to the medical issues raised by Ms Lin at the Tribunal Hearing: CB 48 at [6], namely that “she was pregnant and did not wish to leave Australia” and “had ‘a bit of depression’”, but those assertions were not helpful to Ms Lin because they did not assist her 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 (also referred to in the Tribunal Decision: CB 48 at [7]) because it was not evidence that Ms Lin 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 being no evidence before the Tribunal from any person who was a medical officer of the Commonwealth as defined in reg.1.16AA of the Migration Regulations. It cannot be inferred that the Tribunal failed to take into account Ms Lin’s asserted medical conditions as it specifically referred to them and the relevant criteria: 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.
In her oral submissions before the Court Ms Lin acknowledged that she was unable to point to any error in the Tribunal’s application of the criteria in cl.3001(1) of Sch.3 to the Migration Regulations, and also acknowledged that there was no evidence before the Tribunal from a medical officer of the Commonwealth in relation to her asserted medical conditions.
In her oral submissions before the Court Ms Lin made reference to protection visa applications made, seemingly, by her, and separately by her partner and a child, but if there be any such protection visa applications they are not before the Court for consideration in these proceedings, and are, in any event, irrelevant to Ms Lin’s Medical Treatment Visa application.
Conclusion and orders
The grounds of the Judicial Review Application do not establish jurisdictional error in the Tribunal Decision. No jurisdictional error is otherwise apparent in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
In this case costs must follow the event and there will be an order that the applicant pay the Minister’s costs in the amount of $5800 by 30 June 2017.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 31 May 2017
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