SZTXS v Minister for Immigration
[2018] FCCA 3376
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTXS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3376 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – applicant needed to satisfy Criterion 3001 but did not – administrative Appeals Tribunal not entitled to take into account any compassionate or compelling circumstances – grounds of application do not raise jurisdictional error and are not made out – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 30, 65 Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 |
| Applicant: | SZTXS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2047 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| The Applicant appeared in person with a McKenzie friend. |
| Counsel for the First Respondent: | Ms C. Hillary |
| Solicitor for the First Respondent: | DLA Piper Australia |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 28 June 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2047 of 2017
| SZTXS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Pakistan now aged 50 years, having been born on 6 February 1968.
By Application filed in this Court on 28 June 2017 he seeks to quash and have re-determined the decision of the Administrative Appeals Tribunal (Tribunal), dated 1 June 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection, dated 23 November 2016 refusing to grant to him a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant applied for the Medical visa in Australia on 18 November 2016 and submitted various medical reports as attachments to his application referring to health issues, such as mental problems, depression, shoulder pain, kidney problems and poor vision, and that he had arranged for medical treatment in Australia for the period of 17 November 2016 to 16 November 2018.
The Applicant’s last substantive visa was a Visitor (Class TR) (Subclass 676) visa which ceased on 8 July 2012. This was a temporary substantive visa (see the definition of substantive visa in s.5 and s.30(2)(a) of the Act) and accordingly he did not hold a substantive temporary visa at the time of his application for the Medical visa on 18 November 2016.
Relevant Statutory Criteria for the Grant of a Medical Treatment Visa
An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: cl.602.211 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations).
At the time of decision, the Applicant was required to satisfy cl.602.212 of Sch.2 to the Regulations, which relevantly provided as follows:
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) ...
(3) …
(4) ...
(5) …
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.
(emphasis added)
Additionally, the Applicant was required at time of decision to satisfy cl.602.213 of the Regulations, which relevantly provided as follows:
602.213
(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.
(emphasis added)
As the Applicant did not hold a substantive temporary visa at the time of his application for the Medical visa on 18 November 2016 and could not meet the requirements stated in cl.602.212(6)(b) in that he had not turned 50 years of age either at the time of the Delegate’s decision or the Tribunal’s decision, cl.602.213(3) was engaged so that cl.602.213(5) therefore applied. Consequently, it was necessary for him to satisfy Criterion 3001 in Sch.3 to the Regulations, which provided as follows:
3001
(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.
(emphasis added)
Relevantly, Criterion 3001 therefore required that the Applicant’s application for a Medical visa be made within 28 days after the “relevant day”, which for the Applicant was the last day when he held a substantive visa, namely 8 July 2012: Criterion 3001(1) and 3001(2)(c)(iii).
Decisions of Delegate and Tribunal
Unfortunately for the Applicant he was more than 52 months late in making his application for the Medical visa. He was required to apply within 28 days after 8 July 2012, but did not apply for the Medical visa until 18 November 2016.
The Applicant was aged 48 years at the date of the Delegate’s decision and 49 years at the date of the Tribunal’s decision, and thus had not turned 50 years of age as required by cl.602.212(6)(b).
Accordingly, the Delegate and subsequently the Tribunal, in affirming the Delegate’s decision, found that the Applicant did not satisfy Criterion 3001 and therefore did not satisfy cl.602.213 and thus did not meet the requirements for the grant of a Medical visa.
I note that the Tribunal’s decision and reasoning were in accordance with the analysis of the relevant regulations and criteria set out in the decision of Dowsett J in Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 (Saifuddin).
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Grounds:
1. The Administrative Appeals Tribunal indicated that my visitor subclass 676 visa ceased on 8 July 2012. I submit that I was not prevented from lodging a medical treatment visa therefore the Tribunal decision failed to consider that my application is valid and that there should not be a request for a substantive visa in this matter.
2. The Tribunal did not explain to me what is subclass 403 or 426 visa.
3. The Tribunal failed to take into account compassionate and compelling circumstances.
4.I reserve my right to lodge a transcript for the Tribunal hearing at a later stage.
Consideration
Ground 1
This Ground appears to contend that the Tribunal regarded the Applicant’s application for the Medical visa as being invalid.
However, that does not appear to be the case. There was never any suggestion by either the Delegate or the Tribunal that the application for the Medical visa was invalid, but rather that the Applicant did not meet the criteria for the grant of the Medical visa.
In my view, nothing in Ground 1 establishes that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
There was never any suggestion that the Applicant had ever held a Temporary Work (Subclass 403) visa (Subclass 403 visa) or a Domestic Worker (Temporary) (Subclass 426) visa (Subclass 426 visa) and the Tribunal relevantly so held at [9] of its Decision Record.
Further, the Tribunal was not under any obligation to explain to the Applicant the nature or criteria for the grant of a Subclass 403 visa or a Subclass 426 visa, which were irrelevant to the circumstances of the Tribunal’s decision. The role of the Tribunal does not include advising an applicant: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268] per Hayne J.
Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground also fails to establish jurisdictional error.
It was not open to either the Delegate or the Tribunal to take into account any “compassionate and compelling circumstances”. The Tribunal had no power to do so and had no power to exercise any discretion in the Applicant’s favour for such reasons. The fact of the matter was that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse a Medical visa and the Tribunal bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18] – [19] per Perram J; Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [5] – [6] per White J and Saifuddin at [14] – [15].
Ground 4
Ground 4 simply does not constitute a meaningful Ground and fails to establish that the decision of the Tribunal is affected by jurisdictional error.
A Final Matter
I note for completeness that cl.602.213 was amended by the Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) by repealing cl.602.213(5). These amendments apply to Medical visa applications made on or after 1 July 2017, but not to a Medical visa application which had already been made, as was the case here, prior to that date.
Accordingly, those amendments did not apply to the present Medical visa application and the Applicant in this proceeding needed to satisfy cl.602.213 as in force prior to those amendments: see in particular the decision of Middleton J in Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 at [14] – [16].
Conclusion
In my view, the decision of the Tribunal to affirm the Delegate’s decision to refuse a Medical visa to the Applicant was inevitable in the circumstances and not affected by jurisdictional error.
Accordingly, the Application filed in this Court on 28 June 2017 is to be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 28 November 2018
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