Ng v Minister for Immigration

[2018] FCCA 1363

FEDERAL CIRCUIT COURT OF AUSTRALIA

NG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1363

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the applicant’s compelling circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cls.602.212, 602.213 of sch.2, criterion 3001 of sch.3

Cases cited:

Cakau v Minister for Immigration & Border Protection [2017] FCCA 952

Applicant: KIM SENG NG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3684 of 2016

Judgment of: Judge Smith

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms K Garaty, HWL Ebsworth

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3684 of 2016

KIM SENG NG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant arrived in Australia as a citizen of Malaysia on a visitor visa on 28 October 2009.  That visitor visa was the last substantive visa held by the applicant, and it ceased to be in effect on 28 January 2010.  On 17 May 2016, he applied for a medical treatment (class UB) visa.  The criteria for the grant of that visa are explained and set out in [8] through to [14] of the decision in Cakau v Minister for Immigration & Border Protection [2017] FCCA 952, and I set those paragraphs out below:

   8.In order for the applicant to be granted a medical treatment visa, the Minister or his delegate, and upon review the Tribunal, had to be satisfied that the applicant satisfied the criteria for the grant of that visa. The criteria for the grant of the visa were relevantly found in cl.602 of sch.2 to the Regulations.

   9.Clause 602.212(1) required that the requirements in one of sub-clauses (2) to (8) were met. Those sub-clauses referred to various categories including medical treatment (sub-cl.2), organ donor (sub-cl.3), support person (sub-cl.4), Western Province of Papua New Guinea (sub-cl.5), unfit to depart (sub-cl.6), financial hardship (sub-cl.7) and compelling personal reasons (sub-cl.8). Sub-clause 6 provided:

   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.

   10.The evident purpose of this criterion is to enable a person to remain in Australia for medical reasons if they would otherwise be stranded here and unable to obtain another type of visa due to the medical condition. Importantly, there is an age limit set so that a person under the age of 50 cannot meet the criterion.

   11.Clause 602.213 is central to the issues in these proceedings. It provided:

   (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)     a Subclass 426 (Domestic Worker (Temporary)–Diplomatic or Consular) visa; or

   (b)     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)     a Subclass 426 (Domestic Worker (Temporary)–Diplomatic or Consular) visa; or

   (b)     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.

   12.The effect of cll.602.213(1) and (3) is that, where the applicant was in Australia at the time of the visa application and cl.602.212(6) is not met, there are two streams of criteria in cl.602.213. The first is found in cl.602.213(2) which applies if the applicant held a substantive temporary visa at the time of the application. The second is in cll.602.213(4) and (5) which apply if the applicant did not hold a substantive temporary visa at the time of application.

   13.The applicant did not have a visa at the time of application and so, subject to one possible qualification which is discussed below, the second stream applied to him. That meant that the applicant had to satisfy the sch.3 criteria 3001, 3003, 3004 and 3005.

   14.Criterion 3001 relevantly provided:

   (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:

   …

   (c)     if the applicant:

   (i)ceased to hold a substantive…visa on or after 1 September 1994; or

   …

   whichever is the later of:

   (iii)the last day when the applicant held a substantive…visa; or

   (iv)the day when the applicant last entered Australia unlawfully; or

   …

   (Emphasis in original)

2. On 18 May 2016, a delegate of the Minister made a decision to refuse to grant the applicant a medical treatment visa essentially for the reason that his application was made outside the 28 days after the expiry of his last held substantive visa.  The applicant applied to the Administrative Appeals Tribunal for review of that decision and attended a hearing conducted on 5 December 2016.  On the same day, the Tribunal made the decision to affirm the decision of the delegate.

3. The Tribunal found at [8] that the applicant did not meet the criteria in cl.602.212(6) of the Migration Regulations 1994 (Cth), and as his last visa was not a subclass 403 or 426, the applicant had to satisfy the sch.3 criteria.  It then turned to consider whether the applicant met those criteria and found at [11] that the application for the medical treatment visa was made on 17 May 2016 which was not within 28 days of the relevant date, being 28 January 2010.  For that reason, the Tribunal was not satisfied the applicant met the criteria in criterion 3001 or in cl.602.213 and so affirmed the decision under review.

4. The applicant seeks judicial review of the Tribunal’s decision.  There are six numbered paragraphs in his application.  The first is:

   I disagree with Immigration and AAT’s decision.  They did not consider that I have genuine intention to apply for medical visa onshore.

5. That assertion is neither relevant in light of the criteria to be applied, nor accurate in light of the reasons for the decision as I have outlined.  It is rejected.

6. Paragraph 2 in the application is:

   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.

7. The question of whether they were compelling reasons, and I infer compelling reasons to waive the criteria in criterion 3001 of sch.3 to the Regulations, does not arise because there is no discretion to waive those conditions whatever the circumstances.  Ground 2 is rejected.

8. Ground 3 is an assertion that the Department and Tribunal should grant the applicant a subclass 602 visa and allow him to conduct medical treatment in Australia. That is an assertion of a desire that is irrelevant to the question of whether there is jurisdictional error in the Tribunal’s decision; the only question which is relevant to the exercise of the Court’s power under s.476 of the Migration Act 1958 (Cth). Ground 3 is rejected.

9. The next numbered paragraph under the heading “The Grounds of the Application are: [1]” is:

   I am a Malaysia Chinese and I do need Medical visa for medical treatment.  After my visa expired, I lodged my application for subclass 602 after my previous visa expired due to the situation is out of my control.

   [1] Emphasis in original.

10. These assertions are also incapable of establishing jurisdictional error in the Tribunal’s decision.  The Tribunal was required to, and did, consider whether the applicant met the criteria for the grant of a visa.  On the material before the Tribunal and on the basis of the findings made on the material, its conclusion that the applicant did not meet the criteria was inevitable simply because the application was outside the time required by criterion 3001 of sch.3 to the Regulations.  The fourth ground is rejected.

11. The fifth ground is:

    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.  This is not fair.

12. That ground is rejected as it is the same as the previous ground. 

13. The final ground is:

    I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

14. That is the same as the third ground.  It is rejected for the same reasons.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         28 May 2018