Singh v Minister for Immigration
[2016] FCCA 3061
•5 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3061 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – applicant seeking impermissibly to review previous decision of delegate in separate application – applicant seeking medical treatment visa when not requiring medical treatment – application dismissed. |
| Legislation: Migration Act 1958, s. 476(2) |
| Applicant: | SUKHJINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 477 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 14 October 2016 |
| Date of Last Submission: | 14 October 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 5 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Singh |
| Counsel for the First Respondent: | Ms N. Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 29 December 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
No. ADG 477 of 2015
| SUKHJINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 8 December 2015. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. It should be noted at the outset that the applicant has forwarded to the Court this week several medical certificates seeking, in effect, an adjournment to the proceeding. The first such request was acceded to, notwithstanding that the medical certificate provided from Wellcare Medical Clinic, dated 12 October 2016, did not assert that the applicant was unable to attend Court. Rather, it asserted he was unfit for normal work on 12 and 13 October, inclusive. The matter was adjourned to 14 October 2016 and the applicant forwarded a further medical certificate from the same doctor, asserting that he was unfit for normal work from 13 to 14 October, inclusive, as a result of gastroenteritis with loose bowel motions and vomiting.
These medical certificates were both inadequate in their terms as they did not say why it was that the applicant would be sufficiently affected not to be able to express himself before the Court. Nonetheless, given the nature of the illness, the Court arranged for the applicant to give evidence by telephone. When the matter was heard, the applicant, who expressed himself largely in English but on brief occasions through the interpreter, did not evince any incapacity properly to address the Court and did not apply for an adjournment or otherwise indicate that he was in any way unable to properly participate.
The applicant first came to Australia on a student visa. His student visa application was refused on 28 May 2014. That gave him 28 days to apply to the then Migration Review Tribunal. In his oral submissions, the applicant asserted that he went to a lawyer and gave his documents to that person. They did not apply to the Tribunal on time but, rather, lodged the application on 20 June 2014. The applicant complained of his treatment by the agent and ultimately made the application for the Medical Treatment visa which, as he told the court, was made so that he could “become lawful” in Australia and, thus, prosecute his claim in respect of the student visa. He went on to assert to the Court that he had significant medical difficulties between 2009 and 2014 and told the Court that he had the rest of his medicals in his hand at home while he was on the telephone. I note that the applicant has filed an affidavit annexing substantial medical records consistent with this assertion.
It should also be noted that the applicant has at all material times, as I understand it, made it clear that he is not unwell and is not unable to depart Australia because of medical reasons. The Tribunal, of course, was concerned only with the application for review of the delegate not to grant the medical treatment visa. At paragraph 7-13, CB100-101, the Tribunal noted:
There is in fact no evidence that the applicant has a need to stay in Australia for the purposes of medical treatment. On the same day the application was made, the applicant’s representative wrote to the Department advising:
“It has come to our attention that Mr Singh’s visa status has become unlawful. As a result, we will be lodging a Medical Treatment visa as pathway to exercise Mr Singh’s right to appeal at the Administrative Appeals Tribunal, and eventually, the Ministerial Intervention Unit.”
No actual claims of a need to obtain medical treatment were put forward. Instead, the applicant appears to be made in order to revisit the delegate’s refusal of the applicant’s student visa in May 2014.
Before the Tribunal, the applicant was no longer represented. I asked him if he was aware of the making of the visa application and the correspondence from his agent to the department indicated that it had been made for the sole purpose of accessing Ministerial Intervention. He indicated that he was.
He said that his student visa was refused in May 2014 because he had experienced a number of medical issues, including surgery, for which he had evidence. He claims he provided the evidence to the academic institutions but was unaware of whether it was provided to the Department of Immigration. Based on his absences, he was not considered to be a genuine student, he said.
On the day the visa was refused, he said he signed ‘the papers’ to commence the review before the Migration Review Tribunal. However, it was not timely lodged by his agent, he said. In September 2014 the Tribunal found that it did not have jurisdiction as the application was lodged out of time.
The applicant then said that on the advice of a migration agent, he lodged an application with the Federal Magistrates Court in October 2014. By August 2015 he had retained his most recent representative who advised him to discontinue his application for the Federal Circuit Court and proceed, instead, in the manner outlined above.
He confirmed that he was not currently in need of medical treatment in Australia and was, instead, seeking to finish his studies.
The Tribunal noted that because the applicant did not hold a substantive temporary visa at the time of application, and because of the class of visa held, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005. Criteria 3001 required the application for the visa to be lodged within 28 days of the relevant day. The relevant day in the circumstances was 23 May 2014. The application was made more than a year later on 4 September 2015. As a result, the applicant did not satisfy criteria 3001 and, therefore, did not satisfy the Schedule 3 criteria cumulatively. The Tribunal confirmed the decision not to grant the visa.
The applicant’s oral submissions made it clear that he was concerned with the refusal of his student visa. Indeed, his last submission was that he was here regarding his subclass 572 visa. The difficulty with his position, as counsel for the first respondent pointed out, is that what he is really challenging is the rejection of his student visa in May 2014. That, of course, was a decision of a delegate which is not reviewable by this court because of s 476(2) of the Migration Act. The matter before this court is the Tribunal’s decision about the medical treatment visa. In circumstances where the applicant has always conceded that he does not require medical treatment, it is immediately apparent that the Tribunal cannot possibly have erred by not giving him a medical treatment visa. Furthermore, the Tribunal’s analysis of exactly why it was that the application was doomed to fail, which I have referred to above, was clearly correct. In the circumstances, it is absolutely apparent, regrettably for the applicant, that his application is wholly hopeless and must be dismissed with costs.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 5 December 2016
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