SZRFQ v Minister for Immigration
[2020] FCCA 2909
•28 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRFQ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2909 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for protection visa – whether the Tribunal took into account the applicant’s attempt to obtain a protection visa – whether the Tribunal considered relevant information provided by the applicant – whether the applicant satisfied criterion 3001, 3003, 3004 and 3005 Schedule 3 to the Regulations – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cll.602.212, 602.213 |
| Cases cited: Kim v Minister for Immigration [2013] FCCA 962 Singh v Minister Immigration and Border Protection [2017] FCA 525 Siva v Minister for Immigration and Border Protection [2016] FCA 1229 |
| Applicant: | SZRFQ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3237 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 20 October 2020 |
| Date of Last Submission: | 20 October 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 28 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr O'Sullivan – The Australian Government Solicitor |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $5500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3237 of 2017
| SZRFQ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a Chinese national. The applicant was first granted a subclass 457 visa on 22 November 2006. This visa ceased on 22 November 2010. Since then, the applicant has held a series of bridging visas, but no further substantive visa.
On 23 May 2017, the applicant lodged an application for a medical treatment visa. A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant that visa on 24 May 2017, on the basis that the applicant did not satisfy cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
On 9 June 2017, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. The applicant attended the hearing with his wife. The applicant was assisted by a Mandarin interpreter. On 14 September 2017, the Tribunal affirmed the delegate’s decision to refuse the applicant his medical treatment visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal’s Decision
The Tribunal’s decision is relatively short. At paragraph 8 of its decision, the Tribunal identifies that the issue in the case, was whether or not the applicant satisfied the requirements of cl 602.213 of the Regulations.
Clause 602.213 of the Regulations applies to applicants who are in Australia, at the time the visa application is made. It relevantly requires that the applicant, at the time of lodgement of the application, hold a substantive temporary visa of a specified type, or if they do not hold a substantive temporary visa and are not medically unfit to depart Australia, as required by cl 602.212(6) of the Regulations, certain additional requirements are met. These are that the last held substantive temporary visa was not a subclass 426 or 403 visa and that criterion 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations are met. In order to satisfy criterion 3001, the application for the visa must be lodged within 28 days of the relevant day, which is usually the day the applicant ceased to hold a substantive visa.
At paragraph 11 of its decision, the Tribunal noted that the applicant’s last substantive visa ceased on 22 November 2010, being his UC–457 visa. In order to meet criterion 3001, an application for a medical treatment visa must be lodged within 28 days of the relevant day. In this case, the relevant day was 22 November 2010. The application for the medical treatment visa was made on 23 May 2017, well outside the 28 day time period.
As the applicant did not satisfy criterion 3001, he was unable to satisfy cl 602.213 of the Regulations. Accordingly, the Tribunal found the applicant did not meet the criteria for the grant of the visa and affirmed the delegate’s decision.
Grounds of Judicial Review
The applicant is not legally represented. The applicant drafted the grounds of the application himself without any professional assistance. The grounds of the application lodged with the Court run to some three and one half pages in length and contains some 20 separate paragraphs. The application appears to be a jumble of both grounds of judicial review and submissions. They are less than clear.
The first respondent has sought to crystallise this into three grounds, which are then capable of being responded to. The Court agrees with this approach. The crystallised grounds are as follows:
1. The Tribunal should have taken into account the applicant’s attempts to obtain a protection visa after his last substantive visa ceased, in identifying the relevant date.
2. The Tribunal should have considered that the applicant was unable to make an application for a substantive visa at the time the applicant’s subclass 457 visa ceased, because a rogue migration agent had possession of the applicant’s passport and had been fraudulent in his attempts to make an application for protection visa on the applicant’s behalf.
3. There are compassionate and compelling circumstances which meant that the applicant satisfied criterion 3004 of Schedule 3 to the Regulations.
Preliminary Issue
At the commencement of the hearing, the applicant requested that the matter be adjourned so that he could continue medical treatment for his conditions. These were not specified and no medical evidence was before the Court. The first respondent objected to the adjournment application.
Given the matter had been listed for some time and there was no evidence that the applicant was unfit to participate in the hearing, the adjournment application was refused.
The Applicant’s Submissions
Due to health restrictions, the hearing was conducted by telephone. The applicant appeared before the Court unrepresented. The applicant was assisted by a Mandarin interpreter. At the commencement of the hearing, the Court carefully explained the process that would be followed, to conduct of the hearing. The Court explained the difference between merits review and judicial review.
Despite Court orders, no written submissions or other material was filed with the Court, in support of the applicant’s case. The Court checked with the applicant that he had a copy of the ‘Court Book’ and the first respondent’s written submissions. The Court ensured that the applicant had the opportunity of having the submissions interpreted to him, immediately prior to the commencement of the hearing.
In relation to the matter, the applicant told the Court he felt he needed more time in Australia to be treated for his medical conditions. The pandemic had made it difficult to get treatment as priority was being given to COVID-19 patients.
Following the first respondents oral submissions, the applicant was asked if he wished to say anything further and his response was “no”.
The First Respondent’s Submissions
The first respondent relied upon the written submissions that had been filed with the Court.
In relation to ground one, it was submitted that no error of law is apparent. It is not relevant whether the applicant met the criteria in
cl 602.213 of the Regulations, in that he had applied for a protection visa after his last substantive visa ceased. As the protection visa was not granted, the application for the protection visa did not have any bearing on the fact that the “applicant did not hold a substantive temporary visa, at the time of the application for the purpose of cl 602.213(b) of the Regulations”. The protection visa application is not a relevant matter for determining “the last day when the applicant held a substantive visa for the purpose of criterion 3001(2)(c)(iii) of the Regulations”.
In relation to ground two, the applicant’s claim of his inability to lodge a substantive visa due to the alleged fraud of a rogue migration agent, does not identify any jurisdictional error. Firstly, there was no evidence put forward of the actions of the rogue migration agent. Accordingly, the Tribunal did not fail to consider any claim or integer. Secondly, the requirements of cl 602.213(5) of the Regulations, impose a ‘strict requirement’ that the applicant satisfy the requirements of criteria 3001 of Schedule 3 to the Regulations. There is no discretion to waive compliance with criterion 3001 or to extend the strict 28 day time limit (see Singh v Minister Immigration and Border Protection [2017] FCA 525 at [6] per White J). This is the case even where fraud has been alleged (see Siva v Minister for Immigration and Border Protection [2016] FCA 1229).
Thirdly, the allegation of fraud cannot unravel the Tribunal’s decision, as it was not a fraud on the Tribunal or even in connection with the current application for the medical visa.
Ground three does identify any jurisdictional error. It is simply a request for merits review, in so far as the applicant claims to have met criterion 3004 of Schedule 3 to the Regulations. As the Tribunal correctly found that as the applicant did not meet criterion 3001, there was no need to consider the other criteria. Compassionate and compelling reasons are not otherwise relevant (see Kim v Minister for Immigration [2013] FCCA 962 at [22] and [27], per Judge Nichols).
Consideration
This applicant has been in Australia since 2006. The applicant’s last substantive visa, being a UC-457 visa expired on 22 November 2010. Since then, the applicant has been engaged in a series of attempts to obtain further substantive visas, presumably in order to seek to delay or frustrate his departure from Australia. An application for a protection visa was unsuccessful. Following that attempt, the applicant lodged an application for a medical treatment visa. That application could not and for the reasons listed below, ever had been successful.
The Tribunal correctly identified that in order to meet the relevant criteria for a Medical Treatment (Visitor) (Class UB) visa, the applicant must meet the requirements of cl 602.213 of the Regulations. This relevantly requires that the applicant, at the time of lodgement, either hold a substantive temporary visa, or if he did not hold a substantive temporary visa and is not medically unfit to depart Australia, as required by cl 602.212(6) of the Regulations, certain additional requirements are met. There was no evidence before the Tribunal that the applicant was unfit to depart Australia, due to medical reasons.
That being the case, the Tribunal turned its mind to whether or not the Schedule 3 to the Regulations criteria were met. In order to satisfy criterion 3001, the application for a visa must be lodged within 28 days of the relevant day, which in this case, was the date that the last substantive visa held by the applicant ceased. This was 22 November 2010. The application for the medical treatment visa was made on 23 May 2017.
The Court is satisfied that there was no error in the approach by the Tribunal, in relation to the first ground articulated by the first respondent. As a protection visa was not granted, the Court is satisfied that it did not have any bearing on the fact that the applicant did not hold a substantive temporary visa, at the time the application for a medical treatment visa, for the purposes of cl 602.213(b) of the Regulations. The application for a protection visa had no impact on the determination of the last day, when the applicant held a substantive visa for the purposes of criterion 3001(2)(c) (iii) of the Regulations. Ground one must fail.
Ground two alleges fraud on the part of a “rogue migration agent”. No evidence is provided to support this allegation. As there was no material advanced in support of the allegation, the Tribunal did not fail to consider any claim or material in relation to that matter. The Court agrees with the first respondent that an allegation of fraud cannot unravel the Tribunal’s decision, as it was not fraud of the Tribunal or in connection with the current visa application. No jurisdictional error is established
Ground three does not identify a jurisdictional error. It is merely an attempt to engage this Court in impermissible merits review. As the applicant did not meet criterion 3001, there was no need to consider the other criteria that follow. No jurisdictional error is established.
As the applicant was unrepresented, the Court perused the Tribunal’s decision, but could not identify any other jurisdictional error that was not articulated by the applicant.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 28 October 2020
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