SINGH v Minister for Immigration

[2020] FCCA 2964

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2964

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Medical Treatment (Visitor) (Class UB) visa – whether finding that applicant did not satisfy reg.602.212(4) was affected by jurisdictional error

Legislation:

Migration Act 1958 (Cth), s.359A, Div 5
Migration Regulations 1994 (Cth), regs.602.2, 602.212, 602.212(4)(a)(i), 602.212(4)(b) of Schedule 2

Applicant: JASWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 132 of 2020

Judgment of: Judge Jarrett

Hearing date: 20 August 2020

Date of Last Submission: 20 August 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 26 February, 2020 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 132 of 2020

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 31 January, 2020 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Medical Treatment (Visitor) (Class UB) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Despite directions to do so, the applicant has not filed any written submissions in support of his application.  The grounds of review pursued by him are set out in an amended application for review filed on 25 May, 2020.

4. At the commencement of the hearing before me, the applicant’s solicitor sought leave to withdraw.  I granted that leave.  The applicant then appeared for himself with the assistance of an interpreter.

Background

1. The applicant is a national of India.  He was granted a student visa in 2008 and entered Australia on 7 November, 2008.  He is the spouse of Ms Karimjit Kaur.

2. On 21 September, 2012 the applicant applied for a further student visa.  Ms Kaur also sought such a visa on the basis that she was part of the applicant’s family unit.  The application for the student visa was refused on 11 December, 2012.  The material in the court book demonstrates that the reason for the refusal was that the applicant had breached a condition of his student visa.  The applicant and Ms Kaur applied for review of that decision on 10 March, 2014.  Their attempts to review that decision ultimately came to nothing.

3. On 4 September, 2014 the applicant applied for ministerial intervention, which was also unsuccessful.

4. On 22 October, 2014 Ms Kaur was involved in a motor vehicle incident.  She sustained injuries as a result of being knocked off her motor scooter.  On 3 March, 2015 she lodged an application for a Medical Treatment visa.

5. On 14 June, 2016 Ms Kaur and the applicant were granted medical treatment visas by way of ministerial intervention.  Those visas were to expire on 14 June, 2017.

6. On 13 June, 2017 Ms Kaur applied for a further medical treatment visa.  On the same date, the applicant also made application for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa on the basis that he was accompanying and supporting Ms Kaur.

7. On 20 June, 2017 a delegate of the first respondent decided to refuse Ms Kaur the medical treatment visa for which she had applied.  On 6 July, 2017 Ms Kaur made an application to the Administrative Appeals Tribunal to review the delegate’s decision to refuse her a visa. 

8. On 20 June, 2017 a delegate of the first respondent also refused to grant the applicant the visa for which he applied, on the basis that he did not meet the primary criteria in reg.602.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

9. On 8 July, 2017 the applicant also made an application to the second respondent to review the delegate’s decision to refuse him a visa. 

10. The applications for review are seen to have been dealt with independently.  In respect of the applicant’s application for review, it appears that he was issued with an invitation to attend a hearing before the second respondent.  The hearing occurred on 10 October, 2018.  The applicant appeared to give evidence and present arguments in support of his application.  The second respondent received oral evidence from the applicant.  The hearing was conducted with the assistance of an interpreter in the Hindi and English languages and the applicant was assisted at the hearing by a registered migration agent.

11. On 16 January, 2020 the second respondent affirmed the first respondent’s delegate’s decision to refuse Ms Kaur’s application for a medical treatment visa.

12. On 16 January, 2020 the second respondent wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth), and invited him to provide, in writing, comment on the effect of the refusal of Ms Kaur’s medical treatment visa on his own application. The letter of 16 January, 2020 relevantly provided:

    This information is relevant to the review because it is a requirement under cl.602.212(4) of Schedule 2 of the Migration Regulations 1994 that a support person seeks to give emotional and other support to an applicant who holds a Subclass 602 to visa: c1. 602.212(4)(a) and (b).

    If we rely on this information in making a decision, we may find that you do not support a person who holds a Subclass 602 visa.  If we make this finding, the Tribunal may affirm the Department’s decision under review.

13. The applicant’s representative responded by including a submission made by the applicant which was received by the second respondent on 24 January, 2020.  The applicant’s submission was that the refusal of his visa would have a detrimental effect on his wife, as there would be no one to “look after her 24/7.”  The applicant said:

    In relation to 602.212(4)(b) my wife held a subclass 602 visa, that these are was refused.  We appealed the decision of the delegate at AAT, and that decision was upheld by the member at AAT.  I believe that the decision at AAT was unfair and as such we will be appealing it.  I would require to support my wife during that time.

    My wife visa was refused a 602 visa on 16 January 2020.

14. On 31 January, 2020 the second respondent affirmed the delegate’s decision to refuse the applicant the visa.

Grounds of review

1. The amended application filed on 25 May, 2020 contains the following grounds of review:

   2.  That a breach of the Rules of natural Justice happened in relation to the making of the decision

   3. That the making of the decision was an improper exercise of the powers conferred by the enactment in pursuance of which it was purported

   4. That as per section 20 and 23 off the Judicial Review Act 1991, the decision maker:

   a. Took an irrelevant consideration into account in the exercise of the power

   b. Failed to take relevant consideration into account in exercise of power and

   c. An exercise of a power that is so unsoundable that no reasonable person could do so exercise the power

2. To succeed the applicant needs to establish that the second respondent’s decision is affected by jurisdictional error.  In the absence of a finding of jurisdictional error on the part of the second respondent, this Court has no jurisdiction to grant relief in respect of the second respondent’s decision.

3. The first ground of review is formulaic and devoid of content.  There is nothing in the material before me to suggest that the second respondent breached the rules of natural justice when it made the decision under review.  The applicant was invited to attend a hearing before the second respondent.  He attended that hearing together with the assistance of a representative.  He was assisted by an interpreter.  There is no suggestion in the material before me that he was prevented from putting anything before the second respondent that he considered important.  He made a written submission to the second respondent in response to an invitation to provide comment upon a matter which was critical to the success of his application.  In argument before me, the applicant was unable to identify any particular way in which the rules of natural justice were breached by the second respondent. 

4. I accept the first respondent’s submission that the applicant had a “real and meaningful” opportunity to give evidence and present arguments to the second respondent and that the second respondent acted in accordance with the statutory scheme set out in Division 5 of Part 5 of the Act.

5. In my view, the applicant’s first ground of review has no merit.

6. The second ground of review is also formulaic and devoid of content. The second respondent properly identified that it was necessary for the applicant to satisfy the second respondent that he met the criteria prescribed for the grant of the visa for which he applied. Those criteria were found in reg.602.212 of Schedule 2 to the Regulations. As the first respondent submits, the effect of reg.602.212(1) is that, to satisfy the primary criteria in reg.602.212, the requirements in one of subclauses (2) to (8) must be met by the applicant. The second respondent identified that at issue was the applicant’s ability to meet regs.602.212(4)(a)(i) and 602.212(4)(b) of Schedule 2 to the Regulations. The applicant did not claim to meet any of the criteria in subclauses (2) to (8) other than the criteria in reg.602.212(4). It was not suggested before me that any of the other subclauses could be met by the applicant.

7. Whilst the applicant asserted that he satisfied the criterion in reg.602.212(4) because he sought to give, and has given, emotional and other support to Ms Kaur, that of itself was not enough to engage reg.602.212(4). In addition to demonstrating his emotional and other support to Ms Kaur, he needed to demonstrate that she held a subclass 602 visa, a subclass 675 (Medical Treatment (Short Stay)) visa or a subclass 685 (Medical Treatment (Long Stay)) visa. He could not demonstrate, however, that Ms Kaur held a visa of any of those types. Her application for such a visa had been refused.

8. The second respondent concluded that the applicant did not satisfy reg.602.212(4)(a)(i) on the basis that, in a separate decision by the second respondent on 16 January, 2020 Ms Kaur had been refused a subclass 602 visa. The applicant did not meet the criterion in cl.602.212(4)(b) because she did not hold any of the visas described in that subclause.

9. I accept the first respondent’s submission that based on the evidence before it, the second respondent had no option but to refuse the granting of the visa because the applicant had not demonstrated that any of the criteria in reg.602.212(2) to (8) of Schedule 2 to the Regulation were satisfied by the applicant.

10. This ground does not demonstrate jurisdictional error.

11. As to the final ground relied upon by the applicant, his reference to the Judicial Review Act 1991 appears to be a reference to the Judicial Review Act 1991 (Qld). That act has no application in the present case. This ground of review is misconceived. It does not demonstrate jurisdictional error on the part of the second respondent in this case.

12. There is one matter though that emerges from the applicant’s affidavit material filed in support of his application that warrants comment. The applicant asserts that the second respondent made an error when it determined that Ms Kaur did not hold a relevant visa at the time the applicant’s visa application was determined by the second respondent.  He gives evidence that at the time of the making of his application, Ms Kaur, held a Medical treatment visa and the delegates contention that his wife did not hold medical treatment visa was not correct.

13. It is correct that at the time the applicant initially applied for the visa, the subject of the present proceedings, Ms Kaur held a Medical Treatment (Visitor) (Class UB) Subclass 602 visa.  It will be remembered that that visa was to expire on 14 June, 2017.  The applicant applied for the subject visa on 13 June, 2017.  However, Ms Kaur’s medical treatment visa had expired before the delegate’s decision on the applicant’s initial visa application.  That is to say, Ms Kaur’s medical treatment visa was spent and could no longer be used to support a visa for the applicant. 

14. The primary criteria for the grant of the visa for which the applicant applied must all be satisfied at the time a decision is made on the application: reg.602.2 of Schedule 2 to the Regulations. Reliance upon a 602 visa which has expired will be insufficient to satisfy the relevant primary criteria.

15. Finally, to the extent that the applicant argues that the second respondent’s decision was legally unreasonable, I reject that submission.  The second respondent’s decision record reveals that it considered all of the evidence provided by the applicant that was material to the second respondent’s task.  However, the second respondent was compelled to determine that the applicant did not meet the primary criteria for the grant of the visa.  The conclusions reached by the second respondent in respect of the applicant’s claims were justified by the uncontroversial facts of the case.  The second respondent exposed its reasoning in the decision record and that reasoning was logical and persuasive.  The conclusion reached by the second respondent was a conclusion which was plainly a decision which a reasonable decision maker could have, indeed in my view would have made. 

Conclusion

1. The applicant’s grounds do not disclose any jurisdictional error in the second respondent’s decision.  I accept the first respondent’s submissions that the second respondent has correctly identified the relevant law, applied that law to its findings based on the applicant’s information and submissions and reached a finding which were open to it. 

2. The application must be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020