TANG v Minister for Immigration

[2017] FCCA 2773

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2773

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal not to grant Applicants Medical Treatment visas – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), Sch 2, cls.602.212, 602.213, Sch.3, cl.3001

Cases cited:

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

First Applicant: QIWEI TANG

Second Applicant: YANXIA LYU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 995 of 2016

Judgment of: Judge Barnes

Hearing date: 6 November 2017

Delivered at: Sydney

Delivered on: 6 November 2017

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicants pay the costs of the First Respondent, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 995 of 2016

QIWEI TANG

First Applicant

YANXIA LYU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of decisions of the Administrative Appeals Tribunal not to grant the Applicants Medical Treatment (Visitor) (Class UB) visas.  The First Applicant is a male citizen of China, born on 12 August 1969.  The Second Applicant is his wife, born on 6 June 1968. 

2. The Applicants applied for Medical Treatment visas on 7 October 2015 in reliance on the criteria for a Subclass 602 visa in cls.602.212(2) and (4) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) respectively. The First Applicant applied for a visa on the basis he sought medical treatment and the Second Applicant claimed to be his support person. In his visa application form, the First Applicant claimed that he needed to consult for his stomach problem.

3. The applications were refused by a delegate of the First Respondent on 8 October 2015.  The Applicants sought review by the Tribunal.  On 6 April 2016 the Tribunal affirmed the decisions of the delegate.  The decisions were recorded in the one decision record, but were notified as decisions in relation to the each of the Applicants by letter dated 7 April 2016. 

4. In the decision record the Tribunal referred to the fact that the Applicants had made separate applications for the visas on 7 October 2015 that had been refused on the basis that they did not satisfy the criterion in cl.602.213 in Schedule 2 to the Regulations as neither Applicant held a substantive visa at the time of the visa application and the applications were not made within 28 days of the day their last substantive visas ceased.

5. The Tribunal addressed the requirements for a Subclass 602 visa, in particular cl.602.213 (see generally the discussion of these criteria in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [9]-[17] per Perram J). It was not in dispute that each Applicant was in Australia at the time of the visa application. The Tribunal went on to consider whether either of them held a substantive temporary visa at the time of application (see cl.602.213(3)). It found that the delegate’s decision record, a copy of which had been provided to the Tribunal with the review application, indicated that the last substantive visa held by each Applicant had ceased on 31 October 2013. This had not been disputed. The Tribunal accepted it was correct. The Tribunal also found that neither Applicant met the requirements of cl.602.212(6) as neither of them had turned 50 (see cl.602.213(3)(c) and cl.602.212(6)(b)).

6. In these circumstances, the Tribunal then turned to consider whether the requirements of cl.3001 in Schedule 3 to the Regulations were met (see cl.602.213(3) and cl.602.213(5)).  The Tribunal recorded that in order to satisfy cl.3001 the visa application must have been lodged within 28 days of the relevant day, defined (in cl.3001(2)(c)) to be the last day when each Applicant held a substantive visa.  It found that the last day the Applicant held a substantive visa was 31 October 2013.  The Applicants did not dispute that they applied for the Medical Treatment visas in question on 7 October 2015.  The Tribunal found that these applications were not lodged within 28 days of their substantive visas ceasing and that they did not satisfy cl.3001.  Hence they did not meet the criterion in cl.602.213(5). 

7. The Tribunal stated that it was “mindful” of the First Applicant’s oral evidence that he was not aware that he had to lodge his application within 28 days of his last substantive visa ceasing.  However it found that it had no discretion to find that the requirements of cl.3001 in Schedule 3 were met where the prescribed timeframes for lodgement were not met.  It concluded that neither Applicant satisfied cl.602.213 and hence that the decisions under review must be affirmed. 

8. The Applicants sought review by application filed in this court on 26 April 2016.  In an attachment to the application a distinction is drawn between what are said to be “orders sought” and what are said to be the intended “grounds” of the application, but I have considered all six paragraphs as grounds of review.  The first “ground” (under the heading “Orders sought by Applicant”) is as follows:

   I disagree with Immigration and AAT’s decision.  They did not consider that I have genuine intention to apply for medical visa onshore. 

9. First, this is an application for review of the Tribunal decisions.  The delegate’s decisions were primary decisions and are not reviewable by the Court.  Insofar as any of the grounds seek review of the delegate’s decision they cannot succeed. 

10. In relation to the Tribunal decisions, the difficulty that faces the Applicants (not only in relation to this ground, but also in respect of their other grounds) is that cl.3001 applied to their applications for the reasons the Tribunal gave.  It is an objective requirement.  The Tribunal has no discretion to waive this requirement in relation to an application for a Medical Treatment visa.  As was pointed out by Perram J in Sayadi at [8] (and see also [17]-[19]):

    …by law, subject to certain immaterial exceptions, such a visa can only be issued to a person on a bridging visa if the application for it is lodged within 28 days of the date upon which the applicant’s last substantive visa was in effect.

11. If this ground is intended to suggest that there were compassionate circumstances, as Perram J pointed out (at [19]) in Sayadi, the Tribunal does not, in a case such as the present, have any power to take into account any asserted compassionate circumstances.  Hence it cannot have erred in not doing so.  This ground is not made out.

12. The second “order sought” is, in effect, a ground that the Tribunal did not consider the “fact” that the First Applicant “had compelling reasons for not holding a substantive visa” when he applied for the Medical Treatment visa and that the Department and Tribunal “did not give good consideration of [his] situation was (sic) out of [his] control”. 

13. In its reasons for the decisions the Tribunal referred to the First Applicant’s oral evidence that he was not aware of the time limit.  However, as it (correctly) pointed out, it had no discretion.  It cannot be seen to have erred in failing to take into account asserted compassionate or compelling circumstances. 

14. The third “order sought” is an assertion that the Tribunal should have granted the Medical Treatment visa and allowed the Applicant to “conduct [his] medical treatment in Australia”.  As indicated, a Medical Treatment visa could only be granted if the application was lodged within 28 days of the relevant date, in this case 28 days of the date on which the last substantive visas held by each of the Applicants were in effect.  As the Tribunal concluded, the Applicants were not eligible for the visas in question.  The Minister was bound to refuse the application, as was Tribunal.  It did not fall into any of the asserted errors such as to establish jurisdictional error.  These grounds are not made out. 

15. The first “ground” is:

    I am a Chinese citizen and have a genuine intention for subclass 602.  I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control. 

16. This ground is presumably intended to refer to the First Applicant, but I have considered it in relation to both Applicants.  As indicated, cl.3001 is an objective criterion.  The Tribunal had no discretion and did not err in failing to take into account or give weight to any such contentions or to the Applicant’s asserted lack of knowledge. 

17. The second “ground” is that the Tribunal refused the visa “simply because [the Applicant] did not have the visa at the time of the application and did not consider [his or her] special situation”. 

18. There is no identification of the asserted “special situation”.  In any event, the Tribunal refused the visa application because cl.3001 was not met, and hence it found that cl.602.213(5) was not met on the basis that the application was not lodged within 28 days of the relevant day.  It has not been shown to have fallen into error in so doing.  These grounds do not establish jurisdictional error. 

19. The final ground, which is repeated in the accompanying affidavit, is that the Applicants think that the Tribunal and the Department should grant a Subclass 602 visa and “should well consider [the Applicants’] special situation”.  This reiterates ground 2.  For the reasons already given, it does not establish jurisdictional error on the part of the Tribunal. 

20. The First Applicant submitted that the Tribunal dealt with him unfairly and did not consider his factual situation.  He hoped that the Court could carefully consider his case.  For the reasons given, such assertions do not establish jurisdictional error and otherwise seek impermissible merits review. 

21. As no jurisdictional error has been established, the application should be dismissed.  It is appropriate that the unsuccessful Applicants meet the costs of the First Respondent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  15 November 2017