SZUOU v Minister for Immigration

[2017] FCCA 1270

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1270

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a medical treatment visa – AAT affirms delegate’s decision not to grant medical treatment visa to applicant – application made some 5 years late – applicant simply ineligible for grant of medical treatment visa – Tribunal committed no jurisdictional error – application in Court for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.5

Migration Regulations 1994 (Cth)

Cases cited:

Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352

Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235
Singh v Minister for Immigration and Border Protection [2017] FCA 525

Applicant: SZUOU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 131 of 2016

Judgment of: Judge Dowdy

Hearing date: 15 June 2016

Date of Last Evidence: 27 June 2016

Judgment reserved: 23 July 2016

Delivered at: Sydney

Delivered on: 22 June 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr L Dennis

Solicitors for the Respondents: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 22 January 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 131 of 2016

SZUOU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of India aged 37 years, having been born on 20 December 1979.

2. By Application filed in this Court on 22 January 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 24 December 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 10 September 2015 refusing to grant to him a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (Medical visa).

Background

1. The Applicant arrived in Australia from India in 2008 as a dependent spouse on his wife’s Higher Education Sector (Subclass 573) visa (Higher Education Sector visa). He is now divorced from his wife. His last substantive visa was a Higher Education Sector visa which ceased on 28 July 2010.

2. The Applicant applied in Australia for the Medical visa on 9 September 2015, at which time he was holding a Bridging visa.

Grounds for the Grant of a Medical Visa under Subclass 602

1. 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: cl602.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

2. As at the date of decision the Applicant had to satisfy cl.602.213 which 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.)

1. The term “substantive visa” is defined in s.5 of the Migration Act 1958 (Cth) to mean a visa other than a bridging visa, a criminal justice visa or an enforcement visa.

2. As the Applicant did not hold a substantive temporary visa at the time of application and could not meet the requirements described in cl.602.212(6) in that he neither had turned 50 years of age nor had a written statement from a Medical Officer of the Commonwealth that he was medically unfit to depart Australia, cl.602.213(3) was satisfied so that cl.602.213(5) applied. Consequently it was necessary for him to satisfy criterion 3001 in Schedule 3 to the Regulations.

3. Relevantly, criterion 3001 required that the Applicant’s application for a Medical visa must have been made within 28 days after the “relevant day” which for the Applicant was the last day when he held a substantive visa, namely 28 July 2010: criterion 3001(1) and (2)(c)(iii).

Decisions of Delegate and Tribunal

1. Unfortunately for the Applicant, he was some 5 years late in making his application for the Medical visa. He was required to apply within 28 days after 28 July 2010 but did not apply until 9 September 2015.

2. 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(5). Consequently he did not satisfy cl.602.213 and thus did not meet the requirements for a Medical visa.

3. 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.

Ground of Attack on Tribunal Decision in this Court

1. In his Application to this Court filed on 22 January 2016 the Applicant posited the following Grounds for judicial review of the Tribunal’s decision:

   1.The Tribunal refused my application because I did not meet Schedule 3 but the Tribunal failed to take into account my compelling circumstances and the reasons why my review was not made within 28 days of the expiry of my substantive visa.

   
   
   

   2.I shall provide copy of the transcript when I appeared before the Tribunal on 22 December 2015.

2. At the hearing in this Court on 15 June 2016 the Applicant appeared in person with the aid of an interpreter. He alleged that he had become mentally stressed and unwell from the time he divorced his wife and had informed the Tribunal of this but that the Tribunal did not take his mental condition into account. He further informed the Court that he wanted to tender a copy of the transcript of the hearing before the Tribunal but had not yet obtained a copy. He said that the reason he wanted to tender a transcript of the hearing before the Tribunal was to demonstrate to the Court that he had made a request for an adjournment of the Tribunal hearing and that the request was ignored by the Tribunal member.

3. In these circumstances I refused to adjourn the case but instead made the following orders to accommodate his request to tender a transcript:

   1. In the event that the Applicant seeks to rely on the transcript of the Tribunal hearing, the Applicant is to provide to the First Respondent and to the Court a copy of the transcript verified by affidavit by 7 July 2016 together with any written submission as to the relevance and importance of the transcript in the determination of this case. 

   2. Direct that the Minister file and serve any written response to the Submissions and relating to the relevance and importance of the transcript by 21 July. 

   3. As of 23 July 2016 judgment in this matter will stand reserved. 

4. In the result the Applicant filed an affidavit of a Mr Toufic Laba Sarkis affirmed on 24 June 2016 (marked Exhibit “B”). This affidavit annexed what appears to be a transcript of the hearing before the Tribunal. The transcript reveals that the Applicant told the Tribunal member that he suffered from a lot of depression and stress and that he had made an unsuccessful appeal for Ministerial intervention. The transcript further indicates that contrary to his assertion in this Court, the Applicant did not make any request of the Tribunal member for an adjournment of the hearing.

Consideration

1. Ground 1, which is the only substantive Ground relied on by the Applicant, is to the effect that the Tribunal failed to take into account “compelling circumstances” as excusing the Applicant’s failure to lodge his application for a Medical visa in the required 28-day period after the expiry of his last substantive visa.

2. However, it was not open to the Delegate or the Tribunal to take into account any such “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 and Singh v Minister for Immigration and Border Protection [2017] FCA 525 at [5]-[6] per White J.

3. Furthermore, the Applicant’s asserted medical condition of being mentally stressed and unwell might have been conceivably relevant under cl.602.212(6) but only, inter alia, if he was over 50 years of age, which he was not.

Conclusion

1. 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 and accordingly the Application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:       22 June 2017