Lium v Minister for Immigration
[2018] FCCA 2916
•15 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIUM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2916 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal member failed to give adequate reasons – whether Administrative Appeals Tribunal constructively failed to exercise jurisdiction by failing to consider fundamental aspects of the applicant’s case – whether Administrative Appeals Tribunal gave proper genuine and realistic consideration to the material before it – whether Administrative Appeals Tribunal actively engaged in an intellectual process in considering the merits of the applicant’s case – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), sch.2 cls.602.212, 602.213, sch.3 cl.3001 |
| Cases cited: BZD17 v Minister for Immigration and Border Protection [2017] FCCA 3186 |
| Applicant: | SEE SIANG LIUM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3680 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 15 October 2018 |
| Date of Last Submission: | 15 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2018 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Elodie Cheesman (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3680 of 2016
| SEE SIANG LIUM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 December 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made 23 May 2016 refusing the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (“Medical Treatment Visa”).
The Applicant was unrepresented before this Court, although had the assistance of an interpreter.
On 13 April 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The Applicant confirmed that he has not filed any documents either in accordance with those directions or otherwise in support of his application.
The Applicant confirmed that he continues to rely on the grounds identified in his initiating application filed on 21 December 2016. Under the heading “Grounds of application”, the Applicant identified the following complaints:
“1, I am a Malaysia citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.
2, AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation
3, I don't think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia”
Under the heading “Final orders sought by the applicant”, the applicant identified three further complaints, as follows:
“1. I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for medical visa in Australia.
2. They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for refugee and could not returned to my home country. DIBP and MRT 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 were translated for the applicant and he was invited to say whatever he wished in support. The only response from the applicant was that a lady helped him fill in the forms.
The Tribunal identified the issue before it as whether the applicant satisfied the requirements of cl.602.213 of sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations) in the subclass relating to medical treatment visas for persons seeking to remain in Australia temporarily for medical or related purposes. Clause 602.213 of sch.2 of the Regulations is the relevant clause in respect of this applicant, as it relates to applicants who are in Australia at the time the visa application is made.
Clause 602.213 of sch. 2 of the Regulations requires that the applicant either held a substantive temporary visa of a specified type at the time of application, or the applicant must satisfy sch.3 criteria 3001, 3003, 3004 and 3005.
The Tribunal stated that the applicant did not meet cl.602.212(6) of sch.2 of the Regulations. The Tribunal did not identify cl.602.212(6), which is as follows:
“Unfit to depart
(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.”
The Tribunal made no effort to identify which of those factors to which it was having regard. The court is left to guess what in cl.602.212(6) of sch. 2 of the Regulations the Tribunal was relying on. The Tribunal merely stated as follows:
“8. In the present case, the applicant does not meet cl.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.”
Criterion 3001 of sch.3 of the Regulations (“Criterion 3001”) required that a valid application for a medical treatment visa be made within 28 days of the “relevant day”.
The Tribunal went on to state that in order to satisfy Criterion 3001, the visa application must have been lodged within 28 days of the relevant day. The Tribunal refers to the relevant day as being defined in cl.3001(2) of sch.3 of the Regulations.
Clause 3001(2) of sch.3 of the Regulations is as follows:
“3001
…
(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 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.”
Again, the Tribunal makes no attempt to identify which part of cl.3001(2) to which it is referring.
The Tribunal then states that the applicant gave evidence that the last substantive visa he held was a visitor visa which expired in January 2010. There was no other evidence referred to by the Tribunal as to the date of the last substantive visa held by the applicant. The Tribunal does not identify the evidence given by the applicant to that effect or any exchange it had with the applicant in seeking to identify what that date was. The applicant was unrepresented and required the assistance of an interpreter.
The Tribunal referred to the decision record of the Delegate dated 23 May 2016. The Delegate’s decision makes no reference whatsoever to cl.602.212 of sch.2 of the Regulations. The Delegate’s decision made the following bare statement:
“Departmental records confirm the applicant’s last substantive visa (UD-976) ceased on 27/01/2010.”
The Delegate’s decision concludes that:
“In general, the applicant does not satisfy the requirements in Clause 602.213 in Schedule 2 to the Migration Regulations.”
(Emphasis in original)
The Tribunal affirmed the decision not to grant the applicant a Medical Treatment Visa on the basis that the visa application was not made within the 28 days of the relevant day requirement set out in Criterion in 3001.
The Tribunal’s reasons are in brief and cursory terms.
Moreover, and of particular concern, at [3] of the Tribunal’s decision and reasons, the Tribunal states that:
“On 20 June 2016, the Tribunal received written submissions from the applicant’s migration agent together with supporting documents.”
The Tribunal makes no attempt to identify what those submissions may have been or what those supporting documents may have been. The first respondent’s solicitor read the affidavit of Elodie Jane Cheesman, affirmed 8 October 2018, deposing to the fact that no such documents had been able to be located by the Department. Either the Tribunal received submissions and supporting documents and failed to have any regard to them, or the Tribunal included that statement in error. The first is certainly an error. In relation to the second, having regard to the Tribunal’s very brief statement of decision and reasons, this court has no confidence that the Tribunal has turned an independent mind to the statutory regime the applicant is required to meet. Nor could one be confident that the Tribunal applied the scheme correctly in the absence of the particular information required by those criteria in the context of the Tribunal’s inexplicable reference to the submission of documents provided by the applicant and to which it paid no regard or referred to in error.
It may well be that the applicant does not satisfy the relevant criteria. However, the applicant is entitled to have a review in which the Tribunal member engages in an active intellectual process, particularly where the Tribunal refers to the existence of submissions and supporting documents to which it makes no further reference, and, in circumstances where it does not provide all relevant particulars of the relevant requirements the applicant was required to meet.
In BZD17 v Minister for Immigration and Border Protection [2017] FCCA 3186, Perram, Perry and O’Callaghan JJ at [35]-[36] set out the need for a decision-maker to engage actively with the relevant issues, as follows:
“35. […] it is necessary for a decision-maker to engage actively with the relevant issues. As Flick J, for example, explained in Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 (Islam v Cash):
14. …There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:
“[W]hat was required of the decision maker…was that in considering all relevant material place before him, he gave proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy… The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense…”
36. Similarly, in Lafu v Minister for Immigration and Citizenship [2009] FCAFC140; (2009) 112 ALD 1 at [48]-[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration and Citizenship, the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J)…”
In the context of the reference by the Tribunal to documents and submissions provided by the applicant where the most cursory of proof-reading such a brief decision would have alerted the Tribunal member to a failure to consider material or a failure to correct an error, there has been a failure by the Tribunal to exercise its jurisdiction according to law in a way that makes clear that the Tribunal member has given proper, genuine and realistic consideration to the issues before it.
In the circumstances, I find that the decision of the Tribunal is affected by jurisdictional error and the decision of the Tribunal dated 5 December 2016 should be set aside and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 October 2018
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