SINGH v Minister for Immigration

[2018] FCCA 1133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1133

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – whether the Tribunal failed to consider the compelling reasons advanced by the applicant – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.602.214

Applicant: JOGINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3563 of 2017

Judgment of: Judge Street

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Sydney

Delivered on: 8 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Lucchese
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3563 of 2017

JOGINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 October 2017 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa.

2. The applicant is a citizen of India whose last substantive visa expired on 16 July 2006. On 28 April 2017, the applicant applied for the Medical Treatment visa. On 1 May 2017, the delegate refused the grant of the visa, holding that the applicant failed to meet mandatory criteria under cl 602.213 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he applied for the visa more than 28 days after his last substantive visa expired.

The Tribunal

1. On 19 May 2017, the applicant applied to the Tribunal for review. The applicant was invited to attend a hearing by the Tribunal by letter dated 19 September 2017. On 11 October 2017, the applicant declined the invitation to attend the hearing. On 17 October 2017, the Tribunal affirmed the decision of the delegate.

2. The Tribunal identified the criteria under cl 602.213 of the Regulations and identified the criteria in respect of cl 3001 under Schedule 3 of the Regulations, and that the applicant’s last substantive visa expired on 16 July 2006, and found the applicant failed to meet the mandatory criteria and, accordingly, affirmed the decision under review.

Before this Court

1. These proceedings were commenced in this court on 20 November 2017. On 18 December 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained, in that regard, the Court was considering both the grounds in the applicant’s application and whether or not the Tribunal’s decision could be said to be unlawful or unfair.

3. The Court explained that the applicant’s last substantive visa expired in 2006 and that the applicant had been found not to meet mandatory criteria for the grant of a Medical Treatment visa. The Court explained that, if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for a further review. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

4. The Court explained it would first have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing.

5. From the bar table, the applicant maintained that he had an accident in 2008 and he wanted to remain in Australia so that he could undertake treatment. The applicant, at one stage, suggested that he lodged the application much earlier, but it is apparent on the face of the material before the Court that the application in the present case was not lodged until 2017. The applicant indicated he wanted to stay in Australia to complete undertaking treatment.

6. There is no discretionary power in relation to the determination of Medical Treatment visa under circumstances where the applicant did not meet the mandatory criteria. The Tribunal was not required to consider compassionate or compelling circumstances, and indeed had no power to do so. Nor does this Court hold any discretion in relation to determining whether there is any relevant legal error. The applicant’s submissions invite the Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identifies any jurisdictional error by the Tribunal.

The grounds

1. The grounds in the application are as follows:

   1. I am a national of India, born on 7^th December 1949.

   2. I applied for the 602 Visa in May 2017 to support my wife during her medical treatment in Australia. The delegate refused to grant the visa on 1st May 2017 on the basis that I did not satisfy the requirements of Schedule 3, criterion 3001 for the purpose cl.602.213. They did not consider the compelling and compassionate circumstances I had for not meeting this requirement at the time of application.

   3. We sought a review of the delegate's decision at the Administrative Appeals Tribunal (AAT) but the AAT did not give a fresh look at our case but rather affirmed the decision.

   4. I believe that the AAT and DIBP made an error by not considering the compelling reasons we provided for not satisfying requirements of Schedule 3, criterion 3001 for the purpose cl.602.213. We also gave the reason in written letter but it was still not taken into consideration.

   5. My wife and I were involved in a major car accident in 2008 which severely impacted my wife's mental health. She is still receiving medical treatment for this incident and I need to stay with her in Australia to support her until her treatment is completed. Neither the AAT or DIBP properly considered this fact before refusing my visa.

   6. The injustice of this decision will have detrimental impacts on our life. We have always complied with our visa conditions and requirements during our time in Australia and have been model citizens.

   7. The medical system in Australia is far more advanced than my home country which will ensure a faster recovery for my wife than in my home country. We only wish to remain in Australia until my wife's treatment is complete after which we will both depart back to our home country.

   8. I believe the AAT has made a jurisdictional error in deciding my application and I would like the Federal Circuit Court to investigate this matter and return my application to the Administrative Appeals Tribunal for reassessment.

2. I accept the first respondent’s submissions that nothing in the grounds identified by the applicant supports any relevant legal error being made by the Tribunal. The Tribunal correctly identified the relevant law and on the face of the material before the Court, complied with its statutory obligations, and the adverse finding by the Tribunal was open on the material before the Tribunal. The Tribunal was correct to find that the applicant did not meet the mandatory criteria in respect of the Medical Treatment visa for which he had applied.

3. On the face of the material before the Court, the applicant’s application for a medical visa had no prospect of success as at the time he made the application. Further, on the material before the Court, the application for review before the Tribunal had no prospect of success. On the material before the Court, the application to this Court had no prospect of success.

4. No jurisdictional error as alleged in the application is made out. The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2018