WANG v Minister for Immigration
[2016] FCCA 3510
•13 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3510 |
| Catchwords: MIGRATION – Medical treatment visa application – review of decision of Administrative Appeals Tribunal (Tribunal) – whether the Tribunal erred by failing to consider the applicant’s circumstances – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), cls.602.212, 602.213 of sch.2, criteria 3001, 3003, 3004, 3005 of sch.3 |
| Applicant: | WEICHAI WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3186 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 October 2016 |
| Date of Last Submission: | 13 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr A Markus, Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3186 of 2015
| WEICHAI WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant is a citizen of the People’s Republic of China who arrived in Australia on a student visa on 24 June 2007. That visa ceased to be in effect on 15 March 2010, and it was his last substantive visa. On 21 July 2015, he lodged an application for a Medical Treatment (Visitor) (Class UB) visa on the basis that he wanted treatment for gastritis for the period 23 July 2015 to 23 January 2016.
The criteria for the grant of that visa were contained in subclass 602 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations). Central to the decisions made on the applicant’s visa was cl.602.213 of the Regulations, which provided:
(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.
On 23 July 2015, the delegate of the Minister made a decision not to grant the applicant a visa on the basis that the criteria in cl.602.213 of the Regulations had not been met.
The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant attended a hearing conducted by the Tribunal on 29 October 2015 and made a decision on the same day.
Tribunal’s decision
The Tribunal found that the criteria in cl.602.213 of the Regulations had not been met. It explained the operation of that clause as follows:
11.Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and as detailed in cl.602.213(5) that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
The Tribunal determined that the applicant was not medically unfit to depart Australia as required by cl.602.212(6) because he had not turned 50. There is no issue about that in these proceedings, the applicant, having been born in 1988, was 27 at the time of the decision.
In those circumstances, as the applicant did not hold a substantive temporary visa at the time of the application and the last held visa was not a subclass 403 or 426 visa, the applicant had to satisfy criteria 3001, 3003, 3004 and 3005 of sch.3 of the Regulations. The Tribunal found that the applicant did not satisfy criterion 3001. It explained in its reasons as follows:
15.In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.
I interpolate to say that criterion 3001(2) relevantly provided that the relevant day was the day upon which the applicant last held a substantive visa.
The Tribunal at [16]-[17] of its reasons stated:
16.… the applicant’s last substantive visa ceased on 15 March 2010. The current application for a medical treatment visa was made over 5 years later on 21 July 2015.
17.As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. For these reasons, the applicant does not satisfy cl.602.213.
Consideration
In his application, the applicant raises six grounds.
The first ground raised by the applicant is:
I disagree with Immigration and AAT’s decision. They did not consider that I have genuine intention to apply for medical visa in Australia.
Leaving aside the reference to Immigration, which must be a reference to the delegate’s decision, this ground is factually incorrect. As shown in the summary of the Tribunal’s reason above, the genuineness of the applicant’s intention to apply for a visa did not form any part of the Tribunal’s reasons for its affirmation of the delegate’s decision. The first ground is rejected.
The applicant’s second ground is as follows:
They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for protection visa and could not returned to my home country. DIBP and AAT did not give a good consideration of my situation was out of my control.
(Without alteration)
Once again, this ground is misguided. There was no criterion required to be considered that concerned any compelling reasons that were out of the applicant’s control. Therefore, the ground raises no error in the Tribunal’s decision and is rejected.
The third ground raised by the applicant was:
DIBP and AAT should granted (sic) my subclass 602 visa application and allow me to conduct my medical treatment in Australia.
That is an argument that a different decision ought to have been made on the visa application, and as such, goes only to the merits of the decisions, including the Tribunal’s decision. It does not give rise to any jurisdictional error, and so provides no foundation for the relief sought by the applicant. The ground is rejected.
The fourth ground raised by the applicant 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 my fears for persecution in my home country .
Overlooking the inherent tension between the two statements in the ground, once again, it does not raise any jurisdictional error. The purpose of the application and the genuineness of that purpose played no part in either the criteria or the reasons for decision in respect of the visa.
The applicant’s fifth ground is as follows:
AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation
As noted above, the reason that the Tribunal rejected the applicant’s visa was essentially that the applicant did not satisfy criterion 3001 in sch.3 to the Regulations, which required that the applicant had made an application validly within 28 days of the last substantive visa. Thus, even if this ground is addressed to that finding, it raises no jurisdictional error.
The Tribunal clearly understood the effect of the relevant criteria, including cls.602.212(6) and 602.213 of the Regulations, as well as criterion 3001 in sch.3. The so-called special situation referred to in the ground does not form any part of those criteria, and the Tribunal did not err by failing to have regard to them, whatever they may be.
The final ground raised by the applicant was:
I don’t think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia
It may well be that the applicant needed, as he claims, medical treatment in Australia. However, the ground misunderstands the role of the Tribunal. It was required to review the delegate’s decision, which meant that it had to be satisfied in terms of s.65 of the Migration Act 1958 (Cth) that the applicant met the criteria for the grant of the visa for which he had applied.
It focused on those criteria which relevantly, as I have noted above, required the applicant to have made a valid application within 28 days of having held his last substantive visa. Thus, it was no mistake for the Tribunal to have made a decision in spite of the applicant needing medical treatment in Australia.
The applicant appeared unrepresented in person before me today. He did not make any arguments in support of his application. The applicant did not seek to raise any arguments in reply to the written submissions of the Minister.
Conclusion
The applicant has not established any jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 1 February 2018
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