Ram v Minister for Immigration
[2016] FCCA 645
•24 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 645 |
| Catchwords: MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | SHUSI LATA RAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1353 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2016 |
REPRESENTATION
Ms Charan appeared with leave on behalf of the Applicant
| Solicitors for the Respondents: | Ms H Dejean of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The name of the second respondent be amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1353 of 2015
| SHUSI LATA RAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 15 April 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Ram, a medical treatment visa. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 14 March 2016.
Ms Ram, who is currently 57 years old, is a Fijian citizen.
On 16 January 2015, Ms Ram lodged an application for the visa claiming that she required medical treatment in Australia for “depression and anxiety, posterior mitral valve prolapse” between the period 20 January 2015 and 1 February 2016.[1]
[1] Relevant Documents (RD) 3. The Minister notes that the Tribunal recorded the date of application for the visa at [1] and [15] of its decision as 19 January 2015, rather than 16 January 2015 (which is the date stamped on the application), however nothing turns on this, and it appears to be a typographical error
On 19 January 2015, a delegate of the Minister refused the visa on the basis that Ms Ram did not satisfy clause 602.213 of Schedule 2 to the Migration Regulations 1994 (Regulations).[2]
[2] RD 23-29
On 15 February 2015, Ms Ram sought review of the delegate’s decision with the Tribunal.[3] On 2 April 2015, she appeared at a Tribunal hearing.[4]
[3] RD 30-35
[4] RD 44-45
On 15 April 2015, the Tribunal affirmed the decision not to grant Ms Ram the visa.[5]
[5] RD 53-57
Relevant legislation
For the grant of the visa, Ms Ram had to satisfy clause 602.213 of Schedule 2 to the Regulations. In Ms Ram’s case, clause 602.213 required that unless the exception in clause 602.212(6) applied, she had to satisfy items 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations. Relevantly, criterion 3001 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 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 …
Hence, subject to some exceptions, the visa can only be issued to a person on a bridging visa if the application for it is lodged within 28 days of the date upon which Ms Ram’s last substantive visa was in effect.
The exception at clause 602.212(6) contains the following requirements, all of which must be met (emphasis added):
(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.
Tribunal’s decision record
The Tribunal explained to Ms Ram the issue before it related to the time she applied for the visa, and that with very limited exceptions, an applicant must apply within 28 days of their last visa ceasing.[6] Ms Ram claimed that she could not remember when she last held a substantive visa, although the Tribunal noted, after inspecting Ms Ram’s current passport, that her last substantive visa (a Subclass 309 Temporary Partner visa granted in 2002) was “valid until the applicant was notified of a decision on her permanent partner visa application outcome or that application was withdrawn.”[7] Ms Ram said she thought her application for the permanent visa application was refused in 2005[8] and also gave evidence that she had not held a substantive visa in the last 12 months.[9]
[6] RD 54 [8]
[7] RD 55 [11]
[8] RD 55 [12]
[9] RD 55 [14]
The Tribunal found that Ms Ram did not meet the criteria for the grant of the visa. In particular, on the basis of Ms Ram’s evidence, the Tribunal found that Ms Ram:
a)did not hold a substantive visa at the time of application;[10]
b)had not held a substantive visa in the 12 months preceding the hearing;[11]
c)last held a substantive visa (being the Subclass 309 Temporary Partner visa), which according to the Department’s records ceased in September 2006;[12]
d)did not meet the exception in clause 602.212(6), given her evidence that the partner visa was refused on the basis that her relationship with the partner was not genuine, hence it did not “appear” that she met all the criteria for that visa except for the health criteria;[13]
e)was, consequently, required to satisfy criterion 3001 in order to satisfy clause 602.213;[14]
f)made her application for the visa on 15 January 2015 which was more than 28 days after the “relevant day” – that day being a date prior to 2 April 2014;[15]
g)did not meet clause 602.213 because she did not hold a substantive visa at the time of the application for the visa and does not meet criterion 3001.[16]
[10] RD 55 [15]
[11] RD 55 [15]
[12] RD 55 [15]
[13] RD 55 [17]-[18]
[14] RD 56 [19]
[15] RD 56 [21]
[16] RD 56 [22]
The Tribunal noted Ms Ram’s evidence regarding her medical condition however found that to be irrelevant in the assessment of her visa status at the time of the application.[17]
[17] RD 56 [24]
As Ms Ram did not satisfy clause 602.213 of Schedule 2 to the Regulations, the Tribunal affirmed the decision not to grant the visa.
The present proceedings
The proceedings began with a show cause application filed on 19 May 2015. Ms Ram continues to rely upon that application. There are three grounds in the application:
1.The Migration Review Tribunal failed to accept my application based on exception in cl.602.212(6) which was not during the hearing explained to me and I was not given the opportunity to comment on it.
2.The Tribunal failed to consider that I am medically unfit to depart Australia.
3.The Tribunal failed to apply Schedule 3 as I have compelling and compassionate circumstances.
The application is supported by a short affidavit by Ms Ram’s daughter, which I received.
I also have before me the book of relevant documents filed by the Minister on 29 June 2015.
Both Ms Ram and the Minister have prepared written submissions and made oral submissions at today’s hearing.
Ms Ram was assisted this morning by her daughter, who spoke on her behalf. She spoke eloquently of the difficulties confronting her mother should she be required to return to Fiji. Her mother is a middle-aged woman with health concerns and with no apparent remaining links in Fiji. She has been in this country since 2002. Her two children live in Australia and the father of her children and her current partner is an Australian citizen. There is apparently no family property remaining in Fiji and Ms Ram would hence be confronted with the difficulties of obtaining accommodation and supporting herself if she were required to return to Fiji. She would be separated from all of her immediate family. Fiji, as we know, has recently been devastated by Cyclone Winston, which would add to those difficulties. Plainly, there are humanitarian considerations in the case which could be considered by the Minister if he was so minded. That is beyond the scope of the present proceeding. Ms Ram’s difficulty in this case, however, is that there is, unfortunately, no legal substance in the grounds advanced in the application.
Those grounds are dealt with in the Minister’s submissions. Ms Ram’s submissions did not address those legal issues. I agree with the Minister’s submissions.
Ground 1
Insofar as Ms Ram complains that the Tribunal failed to accept her application based on clause 602.212(6), and failed to explain that provision to her, both complaints are misconceived.
The Tribunal’s reasons record at [16] that Ms Ram did not claim to meet clause 602.212(6). However, the Tribunal nevertheless considered whether she did. The Tribunal’s questioning of Ms Ram regarding her permanent visa, recorded at [11] and [12] of its reasons, was directly relevant to the question of whether she satisfied the exception at clause 602.212(6). In light of the matters discussed with Ms Ram at the Tribunal hearing, the Tribunal discharged its obligations under s.360 of the Migration Act 1958 (Cth) by considering the issues that arose in relation to the decision under review.
Those issues included whether Ms Ram satisfied the exception at clause 602.212(6) such that she did not have to satisfy criteria 3001. The Tribunal considered this but found, based on Ms Ram’s own evidence, that she did not. This is because she did not appear to meet all the criteria for the partner visa she had applied for except for the health criteria (because her relationship with the partner was not considered to be genuine). In light of the material before the Tribunal, the only conclusion available to the Tribunal was that Ms Ram did not satisfy clause 602.212(6).
Ground 1 does not raise an arguable case.
Ground 2
Given Ms Ram clearly did not meet clause 602.212(6)(d), the Tribunal was not obliged to consider whether Ms Ram was medically unfit to depart Australia for the purposes of clause 602.212(6)(f). Clause 602.212(6) could only be met if all the subparagraphs were met.
Ground 3
One issue I raised with the solicitor for the Minister was what was preventing the Tribunal considering Ms Ram’s potential compassionate and compelling circumstances, which would, I understand, be a factor in criteria 3003 and 3004.
The short answer is that Ms Ram must satisfy all of the necessary criteria and a failure to satisfy one is fatal to the visa application.
The Tribunal was not required to consider compelling and compassionate circumstances. As will be recalled, Ms Ram was required to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. While compelling circumstances are relevant to clause 602.213(5) by virtue of criteria 3003 and 3004, once the Tribunal had found that Ms Ram did not meet criterion 3001, it was not obliged to consider whether Ms Ram satisfied the remaining Schedule 3 criteria. Ground 3 is misconceived and cannot succeed.
I also note, as was pointed out by the Minister’s solicitor, that the visa sought would, if granted, have expired in February this year, which arguably renders the issues in this proceeding moot.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,000. Scale costs in this instance would be $3,416. Ms Ram’s daughter did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 March 2016
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