Siva v Minister for Immigration

[2016] FCCA 1238

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIVA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1238

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Regulations 1994 (Cth), Sch.2 – cls.602.212, 602.213, Sch.3 – criterion 3001

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: PRAKASH SIVA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3278 of 2015

Judgment of: Judge Emmett

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3278 of 2015

PRAKASH SIVA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 1 December 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 6 November 2015 and handed down on 9 November 2015 (“the Tribunal”), refusing to grant the applicant a medical treatment visa.

2. On 4 February 2016, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 25 February 2016, as well as submissions in support, by 26 February 2016. The applicant was also provided with the contact details of legal services provided and interpreting and translating services headed in English.

3. At the request of the first respondent, the matter was listed today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) (a copy of which was also given to the applicant) on the basis that the application did not raise an arguable case for the relief sought.

Legislative Framework

1. The criteria for the grant of a medical treatment visa were set out in Part 602 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

2. Clause 602.213 of Schedule 2 to the Regulations relevantly provides:

   “(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.”

   (Emphasis added).

3. Clause 602.212(6) is as follows:

   “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.”

4. Criterion 3001 of Schedule 3 to the Regulations relevantly provides:

   “(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.”

   (Emphasis added).

Background and the Tribunal’s decision

1. The applicant attended a hearing before the Tribunal on 29 October 2015 to give evidence and present arguments. A witness for the applicant also gave evidence at the Tribunal hearing.  

2. In its decision record, the Tribunal noted the migration history of the applicant, as follows: 

   “6. The applicant is Mr Prakash Siva. He is a citizen of Singapore and is 40 years old. He arrived in Australia on a student (TU-572) visa on 13 February 2013 to cease 15 March 2014. He departed Australia on 12 March 2014 and subsequently returned to Australia arriving on 24 March 2014 on a tourist UD-601 visa. He again departed Australia on 8 June 2014 and arrived in 22 June 2014 on the same type of visa to cease 22 September 2014. This was the last substantive visa he held, and following this he has been granted various bridging visas to cease 20 October 2014, 9 June 2015, 16 June 2015, 14 July 2015, 29 July 2015 and the current WE-050 visa granted on 28 July 2015. He was an unlawful non-citizen from 29 October 2014 to 2 June 2015 when he was granted the first of the WE-050 visas on departure grounds. He has applied for the current medical treatment visa on 27 July 2015.”

3. In his application for a medical treatment visa, the applicant stated that he was the victim of fraud by an Australian migration agent. As a result, he was suffering from depression and was under stress. In support of his medical treatment visa application, the applicant provided copies of various documents, including a statutory declaration dated 27 July 2015 and a completed NSW Police ‘Fraud Report Form’.

4. In his evidence to the Tribunal, the applicant referred to his dealings with the migration agent. The applicant said that the migration agent had cheated him out of his money after agreeing to arrange a subclass 457 visa for the applicant.  The applicant said the migration agent then went missing, and he filed a police report. The applicant said that the migration agent took his passport and, as a result, he had to apply for a new one from the Singaporean authorities.   

5. The Tribunal noted that a medical treatment visa is for persons to visit or remain in Australia temporarily for medical treatment or related purposes. The Tribunal noted that it had no discretion in the matter and that simply because someone had taken advantage of the applicant did not mean that he could be granted a visa to remain in Australia.

6. The Tribunal noted that the only issue before it was whether the applicant met the requirements of cls.602.213(3) and 602.213(5) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) for the grant of a medical treatment visa.

7. The Tribunal noted that there were three elements to be satisfied under cl.602.213(3) of Schedule 2 to the Regulations. Namely, that the applicant is in Australia when the visa application was made; that the applicant did not hold a substantive temporary visa at the time of the visa application; and that the applicant did not satisfy cl.602.212(6) of Schedule 2 to the Regulations.

8. The Tribunal noted that cl.602.212(6) of Schedule 2 to the Regulations requires that all of the following criteria be met:

   i)the applicant is in Australia; and

   ii)the applicant has turned 50; and

   iii)the applicant has applied for a permanent visa while in Australia; and

   iv)the applicant appears to have met all the criteria for the grant of that visa other than public interest criteria related to health; and

   v)the applicant has been refused the visa; and

   vi)the applicant is medically unfit to depart Australia due to a permanent or a deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

9. The applicant was obliged to meet each of the mandatory requirements of cl.602.212(6) of Schedule 2 to the Regulations. However, the applicant was born on 9 September 1975, and therefore had not turned 50 years of age. Accordingly, the Tribunal found that the applicant did not meet the requirements of cl.602.212(6) of Schedule 2 to the Regulations to be deemed ‘medically unfit’ to depart Australia.   

10. In the circumstances, the Tribunal went on to consider whether the applicant met criteria 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations as required by cl.602.212(5) of Schedule 2 to the Regulations.

11. In particular, the Tribunal noted that criterion 3001 required that the application for the visa must have been lodged within 28 days of the relevant day, which is defined by criterion 3001(2) of the Regulations. The relevant day is whichever is the later of the last day when the applicant held a substantive visa or the day when the applicant last entered Australia lawfully.

12. The Tribunal found that the last day when the applicant held a substantive visa was 22 September 2014. Accordingly, the Tribunal found that the relevant day is 22 September 2014. On 27 July 2015, the applicant applied for the medical treatment visa.

13. As the visa application was not made within 28 days of the relevant day, the Tribunal found the applicant did not meet criterion 3001 of Schedule 3 of the Regulations, and for that reason, did not satisfy cl.602.213 of Schedule 2 to the Regulations for the grant of a medical treatment visa. Accordingly, on 6 November 2015, the Tribunal affirmed the decision under review.

Application for Judicial Review

1. The applicant was unrepresented before the Court this morning.

2. The applicant confirmed that he relied on the grounds of his initiating application for judicial review, filed on 1 December 2015, as follows:

   “In the decision by Tribunal member, the reason for refusal was mainly stated as “just because he has been taken advantage of by someone doesn't mean than this will result in his being granted some form of visa to remain in Australia.” (Paragraph 11 AAT decision)

   Particulars

   Tribunal erred in that:

   1. Application was made to grant medical treatment visa for undergoing stress, depression and medical conditions due to the migration fraud which has leads to the visa cancellation.

   2. The applicant meets the character requirement under PIC 4001, 4002, 4003 and 4004.

   3. Applicant meets the requirement of criterion 3004 on the following basis which was not considered by the Tribunal member in his decision.

   a) The applicant ceased to hold a substantive visa after 1 September 1994

   b) The applicant is not the holder of substantive visa because his previous visa refusal was a factor beyond the applicant's control; The applicant was a victim to migration fraud and the factors were beyond the applicant's control

   c) The applicant need to remain in Australia for medical treatment to improve the health condition which allow the applicant to return to Singapore.

   d) The applicant intends to comply with conditions subject to which the visa is granted.

   4. The applicant also satisfies criterion 3005.”

   (Errors in original).

3. I explained to the applicant that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider the applicant’s claims and reach different conclusions or make different findings. I explained that this Court is concerned only with whether or not the Tribunal’s decision was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the jurisdiction of the Tribunal. I explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

4. The applicant read an affidavit, affirmed by him on 24 February 2016, which asserted that he did not agree with the decision of the Tribunal.  The affidavit otherwise annexed various documents which were not documents that were before the Tribunal for its consideration. Accordingly, paragraphs 7, 8, 9 and 10 of the applicant’s affidavit, which referred to the various enclosures, were objected to by the first respondent’s solicitor and rejected by me on the ground of relevance. 

5. The applicant was then invited to say whatever he wished in support of the ground of review and in support of his application generally. The applicant had nothing to say other than that his children are now in Australia.

6. The Tribunal’s decision record sets out clearly the criteria that the applicant was required to meet for the grant of a medical treatment visa pursuant to cls.612.213(3) and 612.213(5). The Tribunal’s decision record makes clear the failure of the applicant to meet some of those criteria.  It was necessary for the grant of a medical treatment visa in the applicant’s situation that all the criteria identified by the Tribunal in cls.612.213(3) and 612.213(5) are met.

7. In the circumstances, the findings and conclusions of the Tribunal appear to be open to it on the evidence and material before it, and for the reasons it gave. The complaints made by the applicant are in the nature of a disagreement with the decision of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

Conclusion

1. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review, and set out with some clarity the statutory requirements that the applicant was obliged to meet.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 1 December 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 31 May 2016