Sandhu v Minister for Immigration and Border Protection
[2019] FCA 89
•6 February 2019
FEDERAL COURT OF AUSTRALIA
Sandhu v Minister for Immigration and Border Protection [2019] FCA 89
Appeal from: Application for leave to appeal: Sandhu v Minister for Immigration & Anor [2018] FCCA 2554 File number: NSD 1771 of 2018 Judge: NICHOLAS J Date of judgment: 6 February 2019 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) cl 602.212(6), 602.213 and 3001
Date of hearing: 6 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent Ms C Saunders of DLA Piper Australia Counsel for the Second Respondent The second respondent submitted save as to costs ORDERS
NSD 1771 of 2018 BETWEEN: SWARN SINGH SANDHU
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
6 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)NICHOLAS J:
This is an application for leave to appeal against a judgment of the Federal Circuit Court of Australia dismissing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) the application by Mr Sandhu for judicial review of a decision of the second respondent (“Tribunal”) dated 20 December 2016 affirming a decision of a Delegate of the first respondent (“the Minister”) not to grant Mr Sandhu a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa.
In its reasons for decision the Tribunal referred to the relevant criteria which must be satisfied by persons seeking a visa permitting them to visit or remain in Australia temporarily for medical treatment or related purposes. The Tribunal noted that the question that it was required to determine was whether Mr Sandhu met the requirements of cl 602.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
Clause 602.213 relevantly provided:
602.213
(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.
Clause 602.212(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.
Criteria 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 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 …
The Tribunal found that Mr Sandhu arrived on 13 June 2009 in Australia on a Tourist visa that was valid until 13 September 2009, and that this was the last substantive visa that he held. The Tribunal also found that his application for the Medical Treatment visa was lodged on 27 July 2016.
The Tribunal found that Mr Sandhu did not meet the requirements of cl 602.212(6). Given the Tribunal’s other findings, it is clear that Mr Sandhu did not satisfy the requirements of cl 602.213.
The primary judge was satisfied that the application for judicial review failed to disclose any arguable case of jurisdictional error and that it was appropriate to make an order dismissing the application pursuant to r 44.12.
The applicant’s draft notice of appeal raises the following two grounds:
1.The Hon. Judge Street sailed [sic] to consider that the Tribunal member did not consider properly the test whether the applicant meet the criteria of subclass 602 visa.
2.The Hon. Judge Street dismissed the application without considering the legal and factual errors contained in the decision of AAT.
As to the first ground, the primary judge found that the Tribunal afforded Mr Sandhu a hearing following which it found that he did not hold a substantive visa within 28 days of the relevant date. Before his Honour the applicant accepted that his application for the medical treatment visa was made more than 28 days after his last substantive visa expired, which is what the Tribunal found in [11] of its reasons.
As to the second ground, Mr Sandhu has not identified any legal or factual errors in either the Tribunal’s reasons or the reasons of the primary judge in any written material upon which he relies or in his oral submissions he made today.
In his oral submissions, Mr Sandhu raised with me some matters that went to the merits of his original application. When I directed his attention to the particular basis on which the Tribunal acted, he indicated that he was not in a position to disagree with the Tribunal’s reasoning in relation to the application of the relevant statutory criteria.
The primary judge was right to conclude that Mr Sandhu’s application for judicial review failed to disclose any arguable case of jurisdictional error. In my view Mr Sandhu’s proposed appeal has no prospects of success. His application for leave to appeal will be dismissed on that basis.
There will be an order dismissing the application for leave to appeal with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas . Associate:
Dated: 19 February 2019
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