Pun v Minister for Home Affairs
[2018] FCA 1190
•9 August 2018
FEDERAL COURT OF AUSTRALIA
Pun v Minister for Home Affairs [2018] FCA 1190
Appeal from: Pun v Minister for Immigration & Anor [2018] FCCA 1082 File number: NSD 619 of 2018 Judge: TRACEY J Date of judgment: 9 August 2018 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court (“the FCC”) – where the FCC had dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal had affirmed a decision of a delegate of the Minister for Home Affairs not to grant the first appellant a Medical Treatment (Visitor) (Class UB) visa – where the first appellant had failed to apply for the visa within 28 days after the date on which she last held a substantive visa in accordance with criterion 3001 of Sch 3 of the Migration Regulations 1994 (Cth) (“the Regulations”) – where the first appellant did not, therefore, satisfy the requirements of cl 602.213(5) of Sch 2 of the Regulations – whether the FCC erred in dismissing the application for judicial review Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 602.213(3) and (5), Sch 3 criterion 3001 Cases cited: Pun v Minister for Immigration and Border Protection [2018] FCCA 1082 Date of hearing: 9 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the First Appellant: The First Appellant appeared in person with the assistance of an interpreter Counsel for the Second Appellant: The Second Appellant did not appear Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 619 of 2018 BETWEEN: BISHNU PUN
First Appellant
BIBSON SHRESTHA
Second Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
9 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first appellant pay the first respondent’s costs of the appeal.
3.The second appellant be removed as a party to the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
This is an appeal from the Federal Circuit Court (“the FCC”): see Pun v Minister for Immigration and Border Protection [2018] FCCA 1082. The FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the Minister for Home Affairs (“the Minister”) not to grant Ms Pun a Medical Treatment (Visitor) (Class UB) visa.
The delegate had refused the application because Ms Pun had not satisfied a number of the criteria prescribed for the grant of such a visa. It is only necessary, for present purposes, to refer to one of those criteria. That criterion was prescribed by cl 602.213 in Sch 2 of the Migration Regulations 1994 (Cth). The relevant requirement was that the application for the visa was validly made within 28 days after the last day on which the applicant held a substantive visa: see Sch 2 cl 602.213(3) and (5) and Sch 3 criterion 3001.
It was not disputed that Ms Pun had made her application on 20 April 2016: see Pun v Minister for Immigration and Border Protection [2018] FCCA 1082 at [2]. Despite this it is evident from the material before the Court that her application was in fact made on 19 April 2016 and that it was received by the Department of Immigration and Border Protection on 21 April 2016. Nothing turns on this discrepancy. She had not held a substantive visa since 30 September 2011.
The Tribunal accepted that the Minister’s delegate had been correct in determining that Ms Pun was not eligible to be granted a medical treatment visa.
Her judicial review application to the FCC was made on two grounds. They were:
1.The Tribunal affirmed the decision not to grant medical treatment visa because of the application being lodged over 28 days and I was not the holder of a substantive visa at the time of the application. The Tribunal overlooked the compelling and compassionate circumstances.
2.I asked the Honourable Court to consider my application even though I do not have substantive visa because the law itself denied me natural justice and fairness and the Tribunal failed to consider the compelling circumstances.
The primary judge rejected both grounds and dismissed the application. He found that the 28 days requirement had not been met and that the Tribunal was correct in holding that Ms Pun was not eligible to be granted a medical treatment visa. There had been no scope for the Tribunal to have regard to her personal circumstances which she had described as being compelling and compassionate. No reviewable error had been established.
In her notice of appeal to this Court Ms Pun identified four grounds. They were:
1.I appeared before His Honour Judge Smith yet I have not received his judgment or even an Order for the costs but verbally I was told that my application was dismissed. I do not agree with his decision because my application was refused based on holding a bridging visa as well as I have not turned 50 years of age.
2.My understanding that the law changed as from 1 July 2017 which entitles applicants to lodge medical treatment visa even though they are on bridging visa and not substantive visa. I believe that the law itself is wrong especially that it was designed in a way preventing people under 50 years to be considered. This is called discrimination.
3.I have included my son Bibson Shrestha in my application and I do not know why he was not considered and included in my application.
4.The First Respondent in the First Respondent’s Submissions quoted “even if some error was made by the First Respondent in this regard, the Court has no jurisdiction in relation to the Delegate’s decision.
When the matter was called on this afternoon Ms Pun appeared in person. She had the assistance of an interpreter.
I confirmed with her that, since lodging her notice of appeal, she had received the reasons of the primary judge. I also confirmed with her that the Minister’s submissions had been translated for her.
I pointed out to her that neither of her grounds in the FCC challenged the Tribunal’s decision that it lacked jurisdiction to entertain an appeal from her son.
When invited to make oral submissions in support of her appeal Ms Pun said that she had been sick and, for that reason, had applied for the visa. She had determined to keep appealing successive rejection decisions. She said that she did not hold a substantive visa but asked the Court to grant her the medical treatment visa which she sought.
I explained to Ms Pun that the Court could not intervene unless some legal error was shown on the part of the Tribunal or the FCC. She was unable to point to any such error.
The appeal must be dismissed.
Ms Pun should pay the Minister’s costs of the appeal.
Ms Pun’s son, the second appellant, was removed as a party to the proceeding before the FCC. That removal was not challenged on this appeal. An order should, therefore, be made that he be removed as a party to this appeal proceeding.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 9 August 2018