SZRFR v Minister for Immigration

[2018] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRFR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1537

Catchwords:
MIGRATION – Application for medical treatment visa – review of decision of Administrative Appeals Tribunal – whether the visa application was made within the specified period required – whether the Tribunal had jurisdiction to consider compelling circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.45, 46, 47, 65, 417

Migration Regulations 1994 (Cth), cls.602, 602.212, 602.213 of sch.2, criteria 3001, 3003, 3004 and 3005 of sch.3, pt.2

Applicant: SZRFR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3238 of 2017

Judgment of: Judge Smith

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3238 of 2017

SZRFR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. Before the Court today were two matters both raising essentially the same issues.  Different facts were put forward but rejected for various reasons.  These are applications for judicial review of decisions made by the Administrative Appeals Tribunal on 14 September 2017.  In each case the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a medical treatment (visitor) (class UB) visa.

2. The applicant in the first matter, SZRFR, is the mother of the applicant in the second matter, SZRFS.  Without meaning any disrespect to either of the applicants I will call them respectively the mother and the daughter.

3. The applicants immigrated to Australia together with the husband and father of the applicants, respectively, holding subclass 457 visas.  The first of those visas lasted for four years from 2000 to 2004 and there was a subsequent visa granted for two years from 2004 to 2006 and then, finally, a visa of the same subclass held for four years from 2006 to 2010.  That visa was the last substantive visa held by either of the applicants and it ceased on 22 November 2010.  I will come back in due course to what occurred immediately after the expiry of that visa but presently it is important to note that it was not until 23 May 2017 that each of the applicants applied for a medical treatment visa.

4. The criteria for the grant of that visa are found in cl.602 of sch.2 to the Migration Regulations 1994 (Cth). Relevantly, because neither of the applicants had turned 50 and where the applications were made, cl.602.213 and in particular sub-cls.(4) and (5) applied. Clause 602.213(5) required each applicant to satisfy “Schedule 3 criteria 3001, 3003, 3004 and 3005”. I set out criterion 3001 below:

   (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:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

   (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; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

   (i)    the day when that last substantive visa ceased to be in effect; and

   (ii)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

5. On the ordinary meaning of that criterion, cl.602.213(5) required that the application for the medical treatment visa to have been lodged by each of the applicants no later than 28 days after 22 November 2010.

6. Clearly enough, as the applications were in fact lodged on 23 May 2017, on that understanding of the criterion the applicants could not satisfy the criteria for the grant of the visa and so could not have been granted that visa in light of s.65 of the Act. 

7. On 24 May 2017 a delegate of the Minister made decisions in each case to refuse the granting of the visa effectively for that reason.  Each of the applicants applied to the Tribunal for a review of the decisions and attended a hearing conducted by the Tribunal on 12 September 2017.

8. The Tribunal, constituted by the same Member in each case, made its decision on 14 September 2017 to affirm the decision of the delegate.  The Tribunal in each case found that cl.602.212(6) of the Regulations was not satisfied, that the last visa held by the applicants was not a subclass 403 or 426 visa, and therefore, the applicants  had to meet the sch.3 criteria, including criterion 3001. 

9. Pausing there, as the applications for the medical treatment visa were made on 23 May 2017, the Tribunal was wrong to consider whether the last held visa was a subclass 426 visa.  Any reference to that subclass of visa was removed with effect from 16 November 2016.  Nevertheless, the reference to the subclass 403 visa subsisted at the time of the application and as the applicants had never held that type of visa the reference by the Tribunal to the subclass 426 visa had no material effect on its decision. 

10. Returning to the Tribunal’s reasons, the Tribunal then applied what I have referred to as the ordinary meaning of criterion 3001 and found that as the last substantive visa held by the applicant in each case ceased on 22 November 2010, the “relevant day” was 22 November 2010. As the applications for the medical treatment visa were made on 23 May 2017, criterion 3001 was not met and as a consequence neither was cl.602.213. In each case that was the reason for the Tribunal’s decision to affirm the decision of the delegate.

First Ground

1. The applicant in each case raised the same arguments, effectively they are: first, that the relevant date for the purposes of cl.3001(1) should be taken not literally, but in fact, to mean the date on which the applicants were able, in the first instance, to apply for the visa or make a valid application for a visa.  They say that in this case, that date was 21 April 2011. 

2. The applicants explained in their submissions, and had put on evidence seeking to establish that that was the date on which they had first applied for the visa, because a migration agent who had been engaged by the mother’s husband had acted fraudulently and deliberately retained their identity documents, namely their passports.  This meant that they were prevented from lodging a valid application for a visa.  The ordinary consequence even if that argument were accepted, and subject to the next argument made, is that the criterion in cl.3001 still could not be met because the date of the application, namely 23 May 2017, was well outside the 28 days provided for in that criterion.

3. Nevertheless the applicants seek to meet that consequence by arguing that the word “application” referred to in cl.3001(1) does not, in fact, mean the application for a medical treatment visa but rather the application made for a protection visa.  They argued this because of the following circumstances which I will briefly outline. 

4. The application made for a protection visa was the application made soon after the applicants were able to lodge a valid application having retrieved, with the assistance of the Police, their passports from the fraudulent agent.

5. That application had a history wherein having first been refused by the delegate and then on review by the Refugee Review Tribunal[1] (RRT) went back to the RRT because of a successful judicial review application pursuant to orders made by Smith FM in 2012. When that application upon remission to the RRT was once again unsuccessful in October 2014, the mother’s husband (and the daughter’s father), lodged an application for what is referred to as Ministerial intervention in November 2014 which was refused on 15 May 2017. Ministerial intervention is a shorthand form of the power given by s.417 of the Act to the Minister to make a decision more favourable than that made by the RRT which at the time had the power to review decisions of delegates who refuse to grant protection visas.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

6. The fact of having been refused Ministerial intervention gave rise to a medical condition in both of the applicants before the Court in terms of insomnia and depression.  It is that connection that is relied upon by the applicants to suggest that the proper date within which the applications for medical treatment visas ought to have been made was the date of refusal of the Ministerial intervention application, namely 15 May 2017.  If that were the case, the applications here having been made on 23 May 2017, were well within that time.

7. Giving due credit to the ingenuity of the argument, it faces considerable difficulties in light of the plain text of the Act and Regulations.  As I explained in some detail in rejecting as irrelevant the evidence concerning the conduct of the migration agent and various other matters, the following must be, in my view, the proper construction of cls.3001(1) and (2) of the Regulations. 

8. First, the relevant day referred to in cl.3001(1) must be as defined in cl.3001(2), that is because of the words in the brackets within the meaning of sub-cl.(2).  In cl.3001(2) the relevant provisions are sub-cls.3001(2)(c)(i) and (iii) and those, in this case, required regard to the day on which the applicant in each case ceased to hold a substantive visa which, as I have noted, was after 1 September 1994, being 22 November 2010.

9. The ordinary meaning of those provisions in the context of the Act and Regulations is that the relevant day must be the day upon which the substantive visa held by the applicant ceased to be in effect.  In accordance with the fairly tight regime imposed by pt.2 of the Regulations it is the last day upon which the period of the visa was in force. There was no question in this case that it was 22 November 2010. 

10. Secondly, the word “application” in cl.3001(1) although it is not qualified must mean in the context of the Act and Regulations the application for the visa in respect of the criteria which must be satisfied.  That is because, as I have explained in greater detail, of the centrality of the notion of an application to the scheme of the Act concerning the grant of a visa.  Working backwards from s.65 of the Act, the power to make a decision either to grant or to refuse to grant a visa only arises after the Minister has considered a “valid application for a visa”, thus it is a necessary precondition to the existence of that power that there be a valid application. 

11. That is highlighted by s.47 which requires the Minister to consider a valid application but prohibits the Minister from considering an application that is not a valid application. What is and what is not a valid application is determined by a series of complicated provisions in s.46. Section 45 provides that subject to the Act and Regulations, a non-citizen who wants a visa, in other words who wants the right to travel to and/or stay in Australia, must apply for a visa.

12. As I have said, there are various requirements set around what that application must be. Returning to s.65 of the Act, a visa of a particular class can only be granted if the criteria for the grant of that visa have been satisfied. In this case those criteria are set by a means of the Act and Regulations to be those in cl.602 which through cl.602.213(5) incorporates criterion 3001. That is a direct and consistent line, therefore, between the word “application” in criterion 3001 and ss.65, 45 and 47 of the Act about how a visa is to be applied for and granted.

13. In my view there is no room within that scheme to read the application as meaning anything other than the application for the visa for which the sch.3 criteria applies:  namely in this case, the medical treatment visa.  To read it in the way that would incorporate by reference to factual events such as relied upon here, applications for other visas, would undermine the certainty of the provisions and would give rise to doubt in many cases as to what, in fact, was to be and was not to be considered. For each of those reasons the first ground in the application has no merit and must be rejected. 

Second Ground

1. The second ground is effectively that there were compelling reasons in this case and the Tribunal failed to consider them, however there is nothing in the criteria for the grant of this visa that brings into consideration the existence or otherwise of compelling reasons.  It is not a case such as is relevant to visas such as prospective marriage visas or temporary partner visas that the Tribunal has any discretion if it is satisfied of compelling reasons not to apply criterion 3001.  For that reason the second ground in each case has no merit either.

Conclusion

1. For those reasons the Tribunal’s decision in spite of its erroneous reference to the subclass 426 visa is not affected by any jurisdictional error and the applications must each be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         14 June 2018