UZAN v Minister for Immigration

[2018] FCCA 1175

FEDERAL CIRCUIT COURT OF AUSTRALIA

UZAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1175

Catchwords:
MIGRATION – Medical treatment (Class UB) visa application – review of decision of the Administrative Appeals Tribunal – whether the Tribunal failed to have regard to relevant material considerations – whether the Tribunal’s decision was affected by unreasonableness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.602 in sch.2, criteria 3001 of sch.3

Applicant: YILMAZ UZAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 77 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 K Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 77 of 2017

YILMAZ UZAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant applied for a medical treatment (Class UB) visa on 7 August 2016. The criteria for the grant of that visa are contained in cl.602 of sch.2 to the Migration Regulations 1994 (Cth). The applicant did not hold a substantive temporary visa at the time of the application for the visa. That meant that unless he was medically unfit to depart Australia within the meaning of cl.602.212(6), the applicant had to satisfy criteria 3001 of sch.3 of the Regulations. That criteria required the applicant to have made his application for the medical treatment visa within 28 days of the expiry of his subclass 988 visa, which was 23 November 2012.

2. On 17 August 2016, a delegate of the Minister of Immigration made a decision to refuse to grant the applicant a visa on the basis that he did not satisfy that criteria. The applicant applied to the Administrative Appeals Tribunal for review of that decision. He was invited to attend a hearing to give evidence and present arguments before the Tribunal but declined that invitation. On 15 December 2016 the Tribunal made a decision to affirm the decision under review. The Tribunal found that the applicant was born in 1984 and so had not turned 50, and subsequently did not meet the requirements of cl.602.212(6).

3. Given that the applicant’s last visa was neither a subclass 403 or 426 visa, the Tribunal found at [11] that the applicant had to satisfy the criteria in sch.3 to the Regulations.  It found that as the last substantive visa held by the applicant was on 23 November 2012, and the application was made on 7 August 2016, the application was made outside the time required by criterion 3001 and so the applicant did not satisfy cl.602.213.  For that reason, the Tribunal affirmed the decision of the delegate.  The applicant seeks judicial review of that decision. 

4. In his application the applicant claims that the decision was affected by jurisdictional error because the Tribunal failed to have regard to relevant material considerations and the decision was affected by jurisdictional error in that it was unreasonable. 

5. The applicant neither filed written submissions in support of those grounds nor made oral submissions at the hearing today. 

6. Neither of the grounds in his application has any merit. 

7. It was critical to the Tribunal’s reasons that the applicant had to satisfy the criterion 3001 of sch.3 of the Regulations.

8. That was clearly correct in light of the applicant’s age at the time he made the application and the type of visa last held by him.  Having determined that correctly, the next critical question for the Tribunal was whether the application was made within 28 days of the relevant date on which the applicant last held a substantive visa.  On the material before the Tribunal there was only one answer to that question, that is, that he had not.  Rather, the applicant had applied some four years after the date of the expiry of his last visa. 

Conclusion

1. For those reasons, neither of the grounds in the application have any merit and the application must be dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         10 May 2018