PUN v Minister for Immigration

[2018] FCCA 1082

FEDERAL CIRCUIT COURT OF AUSTRALIA

PUN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1082

Catchwords:
MIGRATION – Application for medical treatment (Class UB) visa – review of decision of Administrative Appeals Tribunal – validity of application – application for review lodged out of time –no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Migration Regulations 1994 (Cth), cll.602, 602.212, 602.213 of sch.2, criteria 3001, 3003, 3004 and 3005 of sch.3

Cases cited:

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

Applicant: BISHNU PUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3339 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 A Zinn, Mills Oakley Lawyers

ORDERS

1. The second applicant be removed as a party to the proceedings.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3339 of 2016

BISHNU PUN

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 10 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. 

2. The applicant applied for that visa on 20 April 2016.  The delegate made a decision to refuse to grant the visa on 22 April 2016 on the basis that the application was made more than 28 days after the day on which she last held a substantive visa which was 30 September 2011.

3. The applicant applied to the Tribunal for review of that decision. 

4. On 7 November 2016, she attended a hearing conducted by the Tribunal and on 10 November 2016 the Tribunal affirmed the decision.  The Tribunal found that there was no issue that the applicant was in Australia at the time of the application and that the last substantive visa held by the applicant, which was a subclass TU 572 student visa, expired on 30 September 2011.  It found on the basis of that, that the applicant did not hold a substantive visa at the time of the application which was 20 April 2016.

5. The Tribunal found that the applicant then did not meet the criteria in cl.602.212(6) of sch.2 to the Migration Regulations 1994 (Cth) because she had not turned 50. For that reason, and because the applicant’s last held visa was neither a subclass 403 or 426 visa, it turned to consider whether the applicant satisfied the sch.3 criteria 3001 of the Regulations.

6. The Tribunal found at [19] of its reasons that as the application was not made within 28 days of 30 September 2011, being the relevant day, the applicant did not meet criteria 3001 and so could not satisfy the criteria for the grant of a visa.  The applicant seeks judicial review of that decision. 

7. The applicant raises two grounds in her application.  First is that the Tribunal overlooked the compelling and compassionate circumstances; secondly, the Tribunal denied the applicant natural justice and fairness and failed to consider the compelling circumstances.

8. At the hearing today the applicant represented herself and argued that anybody who is sick is eligible for the grant of a medical treatment visa.  Neither that submission, nor either of the grounds of the application can be accepted.  I considered the relevant provisions and criteria for the grant of a medical treatment visa in the case of Cakau v Minister for Immigration & Border Protection & Anor [2017] FCCA 952 at [8] through to [13].

9. The qualification I referred to in [13] of Cakau concerns the type of visa last held in this case at the time of the application, that sub-criterion referred to subclass 426 and subclass 403, neither of which the applicant had held. 

10. The reference in the first ground of the application to compelling and compassionate circumstances does not apply in the circumstances of a medical treatment visa.  There are visas in which the Tribunal is able to waive the requirement to meet the criterion in sch.3 in compelling circumstances or for compelling reasons, however that is not the case here.  In cl.602.213 of the Regulations there is, as has been considered in numerous decisions in this Court and in the Federal Court, no discretion to waive the requirement in sch.3 to the Act if that requirement arises, as it does here.  For that reason, the first ground is rejected, as is the ground raised by the applicant orally.

11. The material before the Court shows that the applicant was invited to attend a hearing conducted by the Tribunal in accordance with the requirement of s.425 of the Act. There is no suggestion that that was not a real opportunity to give evidence and present arguments concerning the issues that arose in relation to the decision under review and I can see no other relevant requirement of procedural fairness that may have been breached in this case. For those reasons, the second ground is rejected.

Conclusion

1. Once the Tribunal found that the criteria 3001 had to be satisfied, it was inevitable that the decision under review was going to be affirmed because of the plain and uncontested fact that the application was made more than 28 days after the date on which the applicant last held a substantive visa.  For all of those reasons this application will be dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     1 May 2018