SINGH v Minister for Immigration
[2015] FCCA 1408
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1408 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – application to show cause – whether applicant has raised an arguable case for the relief he seeks – whether applicant applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa within 28 days after the day the last substantive visa held ceased to have effect – whether Tribunal has discretion to consider applications made more than 28 days after the day on which the last substantive visa held ceased to have effect - no arguable case demonstrated – application dismissed. |
| Legislation: Federal Circuit Court Rules2001 (Cth), r.44.12(1)(a) |
| Kim v Minister for Immigration & Citizenship [2013] FCCA 962 |
| Applicant: | PRABHJOT SINGH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3492 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the First Respondent: | Ms S. Sangha of Mills Oakley Lawyers |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,416.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 3492 of 2014
| PRABHJOT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Subclass 602 visa).
The applicant applied for a Subclass 602 visa on 31 July 2014. A delegate of the Minister refused to grant to the applicant a Subclass 602 visa because the applicant failed to satisfy cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
To have been granted a Subclass 602 visa the applicant had to satisfy, among other things, cl.602.213 of Schedule 2 to the Regulations. At the time of application to the Tribunal, cl.602.213 of the Regulations provided as follows:
(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.
As will be seen from the text of that clause, reference is made to the “last substantive temporary visa”. The term “substantive visa” is defined in s.5 of the Migration Act 1958 (Cth) (Act) to mean a visa other than a bridging visa, a criminal justice visa or an enforcement visa.
By letter dated 16 October 2014 the Tribunal invited the applicant to appear at a hearing before it on 17 November 2014 to give evidence and present arguments. The invitation was given by fax to the applicant’s migration agent. There is no issue that the invitation was not properly sent to the applicant. The applicant, however, did not attend and the Tribunal proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.362B of the Act. The applicant was notified the Tribunal may take this course if he did not attend in the letter sent by the Tribunal on 16 October 2014.
In determining the application for review before it, the Tribunal first found the applicant did not hold a substantive visa at the time of application. Second, it found the applicant did not meet the requirements of cl.602.212(6) of Schedule 2 to the Regulations. Third, it found, relying on the delegate’s decision record, that the last substantive visa the applicant held was a subclass 572 visa and not a subclass 403 or 426 visa. The Tribunal then proceeded to consider whether the applicant satisfied cl.602.213(5).
The Tribunal first considered whether the applicant satisfied criterion 3001 of Schedule 2 to the Regulations. The Tribunal noted that if the applicant failed to meet one of the criteria there listed, cl.602.213(5) could not be satisfied.
As at the date of application, 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.
The Tribunal found the applicant had not held a substantive visa since 25 March 2011 and, accordingly, the application the applicant filed on 31 July 2014 was not within 28 days of the last day the applicant’s substantive visa ceased. The Tribunal, therefore, concluded that the applicant did not satisfy criterion 3001, and that as a result the applicant did not meet the requirements of cl.602.213(5) of the Regulations.
I now turn to the grounds of review stated in the application. There are three grounds, each un-particularised. These are:
(1) Jurisdictional error and lacked jurisdiction.
(2) Error in interpretation of legislation.
(3) Natural justice.
The applicant, who is not legally represented, made no submissions in relation to any of these grounds. The grounds of application raise no arguable case. They are general and un-particularised grounds of jurisdictional error, and do not attempt to engage in any way with the Tribunal’s decision or its reasoning. The Tribunal was clearly correct to find it was a requirement of the applicant’s being granted a Subclass 602 visa that the applicant had to hold a substantive visa within 28 days before the date on which the applicant applied for that visa.
The Tribunal had no discretion in relation to the applicant not being able to satisfy that criterion. As was noted by Judge Nicholls in Kim v Minister for Immigration & Citizenship,[1] the subclasses of visas of which Subclass 602 visas form part “do not include any criterion of exceptional circumstances, and the like” and that the “requirements posed by the Regulations were strict in terms of the time limit”.
[1] [2013] FCCA 962 at [37]
In my opinion, the application raises no arguable case for the relief it seeks and it should be dismissed with costs. I therefore propose to dismiss the application and to order that the applicant pay the Minister’s costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 May 2015
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