Wang v Minister for Immigration

[2016] FCCA 196

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 196

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Applicant: YURONG WANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3559 of 2014

Judgment of: Judge Driver

Hearing date: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents:  Ms N. Johnson of Mills Oakley Lawyers

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3559 of 2014

YURONG WANG

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 to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The Tribunal decision was made on 25 November 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant, Ms Wang, a medical treatment visa. 

2. The background is that Ms Wang applied for the visa on 19 June 2014.  The visa is for people seeking to visit or remain in Australia temporarily for medical treatment or related purposes.  I asked Ms Wang today what were the facts or circumstances leading her to apply for the visa.  It appears that she had come to Australia as a student and had later sought a protection visa.  She was unsuccessful in that application.  Ms Wang formed a relationship with a Chinese man in Australia and became pregnant.  She now has two children, one of whom lives with her and the other lives with the father.  Towards the end of one of the pregnancies, she engaged another woman to help her around the house.  For some unexplained reason, this woman, early one morning, attacked Ms Wang in her bedroom with a knife.  One of Ms Wang’s fingers was severely cut.  Her screams attracted the attention of neighbours, and an ambulance and the police were called.  Ms Wang was taken to hospital and underwent surgery almost immediately.  The prompt medical intervention, it would seem, has saved the finger.  The involvement of the police, it appears, led to an apprehended personal violence order being made in Ms Wang’s favour.

3. It is not clear how long after this incident Ms Wang applied for the visa.  What is clear is that Ms Wang sought the visa for the purposes of receiving medical treatment consequential to the surgery.  A medical treatment visa under subclass 602 is one of the more arcane visas in the complex Australian visa regime.  As explained by the Tribunal in its decision record, and as further explained orally by the Minister’s solicitor today, a requirement for the grant of the visa is that the applicant held a substantive visa of a specific type at the time of the medical treatment visa application.

4. Ms Wang did not hold a substantive visa at the relevant time.  In the circumstances, what are known as the Schedule 3 criteria applied.  The Tribunal gave attention to the first of these, being criterion 3001.  That required that the visa application be made within 28 days of the date of expiry of the last substantive visa.  Ms Wang’s last substantive visa, that is her student visa, expired on 15 March 2010.  Ms Wang applied for the medical treatment visa more than four years later.  Plainly, therefore, she could not meet that criterion.  The Schedule 3 criteria are cumulative, and the Tribunal had no discretion to waive any of them.  It was clear, therefore, that Ms Wang was ineligible for the class of visa she sought. 

The present proceedings

1. These proceedings began with a show cause application filed on 19 December 2014.  Ms Wang continues to rely upon that application.  There are three grounds in the application:

   1. I am a Chinese citizen and have a genuine intention for subclass 602.  I had to lode my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.

   2. MRT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation

   3. I don’t think I have been fairly treated by MRT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia

2. In addition, the application contains three other paragraphs that might be construed as grounds. 

   1. I disagree with Immigration and MRT’s decision.  They did not consider that I have genuine intention to apply for medical visa in Australia.

   2. They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for refugee and could not returned to my home country.  DIBP and MRT did not give a good consideration of my situation was out of my control

   3. DIBP and MRT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia (errors in original)

3. I have before me as evidence a short affidavit made by Ms Wang and filed with her application.  In addition, I have before me as evidence the court book, apparently e-filed on 12 February 2015.  I mention, for completeness, that the copies of the court book available to me in hardcopy form do not indicate the date of filing. 

4. I invited oral submissions from the parties today in circumstances where neither Ms Wang nor the Minister had filed any written submissions. 

5. Ms Wang explained the background to her visa application, but was not in a position to raise any legal issues about the Tribunal’s decision.

6. The Minister’s solicitor’s explanation of the decision pointed to an outcome where the failure of the visa application before the Tribunal was, in effect, the inevitable consequence of the factual circumstances.  In her application, Ms Wang states that she disagrees with the decisions of the Minister’s delegate and the Tribunal.  In particular, she disagrees with the purported decisions that she did not have a genuine intention to apply for a medical visa in Australia.  

7. The decision of the Minister’s delegate is a “primary decision” as defined in the Migration Act 1958 (Cth), and the Court has no jurisdiction to review it.

8. The question of Ms Wang’s intentions, whether medical or otherwise, was not a factor before the Tribunal.  Ms Wang asserts that the Tribunal and the delegate did not consider that she had compelling reasons for not holding a substantive visa as she applied for a protection visa and could not return to China.  However, based upon the visa criteria, the reason why Ms Wang no longer held a substantive visa was irrelevant to the outcome. 

9. Ms Wang asserts that the Minister’s Department and the Tribunal should grant her the visa.  That is simply a dispute over the merits of the Tribunal decision. 

10. Under the heading “Grounds of application”, Ms Wang again asserts that her intention is genuine in relation to the visa sought.  That is not disputed, but was not a relevant consideration for the Tribunal.  In Ground 2, Ms Wang notes that her visa was refused simply because she did not have a substantive visa at the relevant time.  She asserts that the Tribunal did not consider her special situation.  The answer to that contention is that the Tribunal had no discretion to consider any special situation. 

11. Finally, Ms Wang asserts that she does not think she has been fairly treated in relation to her visa application, as she desperately needs medical treatment in Australia.  In my opinion, there was nothing unfair about the Tribunal’s reasoning or decision when considered on a legal basis.  As a matter of fact, although not material to my decision, I do not regard Ms Wang’s present circumstance as being one of a desperate requirement for medical treatment.  On the basis of her explanation of the facts to me, she received the urgent medical intervention necessary at the time of the injury.  Her position now is that she from time to time feels pain in the finger and would benefit from physiotherapy.  She is apparently ineligible for Medicare benefits and is not receiving physiotherapy, because she cannot afford it. 

12. I conclude that Ms Wang is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

13. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

14. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Ms Wang said that she understood the position and she did not oppose an order for costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416, with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

15. I will direct that the name of the second respondent be amended to the Administrative Appeals Tribunal. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  9 February 2016