Lu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1008
•7 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Lu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1008
File number(s): SYG 2245 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 7 May 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Medical Treatment visa because application for such visa was not lodged within 28 days of the “relevant day” as required by Schedule 3 criterion 3001 – whether Tribunal erred in not considering reasons why the applicant did not apply for a Medical Treatment visa within 28 days of the “relevant day” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2, cls 602.212, 602.213, Sch 3, criteria 3001
Cases cited: Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 Number of paragraphs: 22 Date of hearing: 7 May 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter Solicitor for the First Respondent: Ms J Xiao of Clayton Utz Lawyers ORDERS
SYG 2245 of 2017 BETWEEN: DONGDONG LU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
7 MAY 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,206.
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (class UB) (subclass 602) visa (Medical Treatment visa).
The background is as follows.
The applicant is a citizen of China. On 28 March 2017 he applied for a Medical Treatment visa. The applicant had previously held a student visa, but this was cancelled on 27 May 2009.
To have been entitled to the grant of a Medical Treatment visa the applicant was required to satisfy, among other things, cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause provides as follows:
(1) Subclause (2) applies if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant held a substantive temporary visa at that time; and
(c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(2) The substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(3) Subclauses (4) and (5) apply if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant did not hold a substantive temporary visa at that time; and
(c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4) The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
The effect of this requirement was accurately summarised by the Tribunal in its reasons for decision as follows:
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 cl.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.
Of relevance is paragraph 5 of cl 602.213 of Schedule 2 which requires the applicant to satisfy, among other things, criteria 3001 of Schedule 3 to the Regulations. That criterion relevantly provides as follows:
(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)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.
The application was rejected by a delegate of the Minister, and the applicant applied to the Tribunal on 19 April 2017 for review of that decision. The applicant was invited to appear before the Tribunal to give evidence and present arguments; and according to the Tribunal’s decision record the applicant did so appear on 22 June 2017.
The Tribunal affirmed the delegate’s decision. It held that the applicant did not meet or does not meet cl 602.212(6); he did not hold a substantive temporary visa at the time of his application, and the last such visa the applicant held was neither a subclass 403 visa nor a subclass 426 visa. In those circumstances the Tribunal reasoned the applicant must meet the schedule 3 criteria. Particularly relevant to this application is criterion 3001. The Tribunal then considered whether the applicant met criterion 3001.
The Tribunal said that to have satisfied that criterion the applicant’s application for the Medical Treatment visa ought to have been lodged within 28 days of the relevant day. The Tribunal noted that the expression “relevant day” is defined in paragraph 2 of criterion 3001, an extract of which is attached to the Tribunal’s reasons. The Tribunal then referred to the applicant having filed with the Tribunal a copy of the delegate’s decision record, indicating that the last substantive visa the applicant held was a student visa which was cancelled on 27 May 2009. The Tribunal found that the “relevant day”, therefore, is 27 May 2009. The Tribunal concluded that although it found that a valid application for a Medical Treatment visa was made on 28 March 2017 by the applicant, the applicant did not satisfy criterion 3001 because it was not made within 28 days of the “relevant day” which, as I have noted, the Tribunal found was 27 May 2009. Given the applicant did not satisfy criterion 3001 the Tribunal found, as it inevitably had to find, that the applicant did not satisfy cl 602.213. Given that finding the Tribunal affirmed the delegate’s decision.
I should note at this point that the applicant is not legally represented. He appeared with the assistance of an interpreter. As is my usual practice I explained what the purpose of the hearing is. I also explained the procedure, identified the documents, and received into evidence the documents that were relevant. I then asked the applicant whether he wished to say anything in support of his application, and, in particular, whether he wanted to tell me why he believed the Tribunal’s decision was wrong. The applicant said he did not wish to make any submissions. I drew the applicant’s attention to the grounds stated in the application, and he told me that he did not wish to add anything to what was in his application.
I then turn to the grounds set out in the application and I will set these out now. There are six grounds, three appearing in the section of the application headed “Final Orders Sought by The Applicant”, and three under the heading “Grounds of Application”. The grounds under the heading “Final Orders Sought by The Applicant” are as follows (errors in original):
[1] I disagree with Immigration and AAT’s decision. They did not consider that I have a genuine intention to apply for a 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.
Under the heading “Grounds of Application” the following paragraphs appear (errors in original):
[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 I did not have the visa at the time of the application and did not consider my special situation.
[3] I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.
The Minister in his written submissions referred to these grounds and treats them each as a separate ground, although the Minister notes that there is some overlap in the grounds. The Minister submits that the grounds or the assertions contained in the grounds are misconceived, certainly to the extent that the grounds refer to the delegate’s decision. The delegate’s decision is outside the scope of this Court’s jurisdiction under s 476 of the Act. But more fundamentally, the Minister submits that the grounds assume that the Tribunal had the discretion not to apply criterion 3001. The Minister submits that assumption is incorrect. The requirement of criterion 3001 is a mandatory requirement for the grant of a visa. The Minister referred to the Full Federal Court’s decision in Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200.
The Minister is correct to the extent he submits criterion 3001 is mandatory. I accept the Minister’s submissions that the grounds are misconceived to the extent they assume the condition is not mandatory. I will nevertheless go briefly through each of the grounds.
Ground 1 appearing under the heading “Final Orders Sought by Applicant” expresses disagreement with the Tribunal’s decision, and the ground of that disagreement is that the Tribunal failed to consider the applicant had a “genuine intention to apply for a medical visa on shore”. The Tribunal did not consider that question, but it was not required to because the criterion it was required to consider was whether the application for that Medical Treatment visa was made within 28 days after the “relevant day”.
Ground 2 appearing under the heading “Final Orders Sought by The Applicants” says that the Tribunal did not consider whether the applicant had a compelling reason for not holding a substantive visa; and it also complains the Tribunal did not give good consideration of his situation. Again, it is true the Tribunal did not consider those matters; but it was not required to do so, the only issue in relation to this particular criterion being whether the applicant had applied for the Medical Treatment visa within 28 days of the “relevant day”, which the Tribunal found, and there was no reason to doubt its correctness, was 27 May 2009.
Ground 3 under the heading “Final Orders Sought by The Applicants” complains that the Tribunal should have granted the medical visa treatment to allow the applicant to conduct his medical treatment in Australia. Again, that is not relevant to the issue of whether condition 3001 applied.
I move to the other three grounds that appear under the “Grounds of Application”. Ground 1 refers to the applicant not having lodged his substantive visa due to a situation beyond his control. That is not relevant; and in any event there is nothing to suggest that any such matter was put before the Tribunal.
Ground 2 of the “Grounds of Application” complains that the Tribunal did not consider the applicant’s special situation. Again, that is not relevant.
Ground 3 of the “Grounds of Application” is an appeal to this Court to require the Tribunal to grant a Medical Treatment visa to the applicant, and that the Tribunal should well consider his special situation. That is not a reason for setting aside the Tribunal’s decision because a special situation – even if there were evidence of it – would not be relevant to whether the applicant had lodged his application for a Medical Treatment visa within 28 days after the “relevant day”, that day being 27 March 2009.
In these circumstances none of the grounds on which the applicant relies have been made out, and it follows that the application must be dismissed.
The Minister applies for an order that the applicant pay the Minister’s costs and that that amount be set at $7,206. The applicant submits that he will not be able to pay such amount of money. That usually is not a reason for not making an order for costs. There is no reason why the usual order for costs should not apply in this proceeding, that is to say that the applicant should pay the Minister’s costs. I am also satisfied that the $7,206 for which the Minister seeks his costs be fixed reflects a fair indemnity of the costs the Minister has incurred in this proceeding.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 12 May 2021
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