WENG v Minister for Immigration

[2017] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1207

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl. 602.212(6), 602.213, Schedule 3, criteria 3001, 3003, 3005

Applicant: CAILIN WENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1095 of 2016

Judgment of: Judge Manousaridis

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Sydney

Delivered on: 2 June 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

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

2. The applicant pay the first respondent's costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1095 of 2016

CAILIN WENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because it does not raise an arguable case for the relief it seeks. By that application the applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the Minister not to grant the applicant a medical treatment (visitor) (class UB) visa (Medical visa).

2. To have been entitled to a Medical visa the applicant had to satisfy, among other things, the criteria specified in cl.602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause required the applicant to be in Australia at the time he applied for the Medical visa, the applicant hold a substantive visa at that time, and the requirements described in cl.602.212(6) were not met in relation to the applicant.   The requirements specified in cl.602.212(6) included the requirements that the applicant is 50 years of age or over and that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition as evidenced by a written statement to that effect from a medical officer of the Commonwealth. 

3. In addition, cl.602.213 of Schedule 2 to the Regulations required the applicant satisfy Schedule 3 criteria 3001, 3003 and 3005. Criterion 3001 required, among other things, that the application for the Medical visa be made within 28 days after the last day on which the applicant held a substantive visa. The applicant applied for the Medical visa on 26 November 2015. The last substantive visa the applicant held was a student subclass 572 visa which ceased on 16 September 2010.

4. The Tribunal found the applicant did not satisfy criterion 3001.  The Tribunal noted that in order to satisfy that criterion the application must have had to been lodged within 28 days of the “relevant day”. The “relevant day” is defined in criterion 3001(2) of Schedule 3 to the Regulations, to comprise, where the applicant ceased to hold a substantive visa after 1 September 1994, the last day when the applicant held a substantive visa; and that the "relevant day" in the circumstances of the case before the Tribunal was the last day on which the applicant held a substantive visa.  That date was, so the Tribunal found, 16 September 2010. The Tribunal inevitably  concluded that the application for a Medical visa made by the applicant was made more than 28 days after the applicant last held a substantive visa, that day being 16 September 2010.  The Tribunal was also satisfied that, given the applicant was younger than 50 years of age, he was not medically unfit to depart Australia. 

5. I turn to the grounds of application. These are attached to the application and are divided into two sections, one of which is headed “Orders Sought by Applicant” and the other headed “The Grounds of the Application Are”. I will turn first to the paragraphs in the attachment under the heading “Orders Sought by Applicant”.  Paragraph 1 states that:

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

6. The applicant made no submissions in relation to this ground, and I should  note the applicant made no submission in relation to any of the grounds. This ground, as stated, does not disclose any jurisdictional error by the Tribunal.  It expresses disagreement.  The applicant has not claimed that the Tribunal was incorrect in concluding that the last day on which the applicant held a valid visa was 16 September 2010 and that, therefore, the applicant did not apply for the medical visa within the 28 day period required by criterion 3001. It is beyond argument that, given that finding, which is not challenged, the Tribunal was correct to conclude that criterion 3001 had not been met.  Further, the reference in paragraph 1 to the claim that the Tribunal did not consider the applicant's genuine intention to apply for a Medical visa in Australia is not relevant to whether criterion 3001 was satisfied.  The Tribunal had no discretion to waive that condition. 

7. I then turn to paragraph 2 of the attachment which appears under the heading “Orders Sought by Applicant”.  That ground states (errors in original):

   I could not apply for medical visa offshore as I have strong fears to return to my home country even though my protection visa has been refused by DIBP.  My compelling reasons for applying onshore has not been well considered by DIBP and AAT.  DIBP and MRT did not give a good consideration of my situation was out of my control.

8. This ground purports to explain why the applicant cannot apply for a medical visa if he were to be overseas.  The ground also refers to the existence of compelling reasons which, it appears to be claimed, the Tribunal ought to have considered but did not consider.  Neither of these matters are relevant to whether criterion 3001 was satisfied, nor is it relevant to whether the applicant was 50 years or younger.  Paragraph 2, therefore, is not arguable. 

9. Paragraph 3 of this part of the attachment to the application states:

   DIBP and MRT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

10. This raises no arguable case of jurisdictional error.  It is a submission that the Department of Immigration and Border Protection and the Tribunal should grant the applicant a medical visa.  That is not arguable because the Tribunal and, of course, the Minister, whose discretion is the subject of review, have, in fact, no power to waive criterion 3001.

11. I then turn to the paragraphs under the heading “The Grounds of the Application”.  The first paragraph 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.

12. This raises no arguable case of jurisdictional error.  The ground purports to explain why the applicant did not lodge an application for a Medical visa while he was the holder of a substantive visa.   It appears to claim that the applicant did not hold a substantive visa because he had applied for a protection visa.  Again, whether that is true or not is not relevant to whether criterion 3001 has been satisfied.  

13. Paragraph 2 under the heading “The Grounds of the Application” states: 

    AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my compelling reason beyond my control.

14. Again, the complaint here appears to be that the Tribunal did not consider compelling circumstances, which include the reasons why the applicant did not hold a substantive visa at the time he applied for the Medical visa.  This raises no arguable case of jurisdictional error because, as I have said already, the Tribunal had no discretion to waive compliance with criterion 3001. 

15. I finally turn to paragraph 3 of under the heading “The Grounds of the Application”, which is as follows:

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

16. This ground does not particularise the respects in which it is claimed the applicant had not been treated fairly. It appears the complaint simply relates to the fact that the Tribunal decided not to consider the application beyond determining the applicant did not comply with criterion 3001.  Again that discloses no arguable case of jurisdictional error because that condition was not capable of being waived by the Tribunal.

17. Speaking generally of the grounds, it can be said that none of them claims the Tribunal was incorrect in concluding that the last day on which the applicant held a substantive visa was 16 September 2010.   There is nothing to suggest the Tribunal was wrong in so concluding, or in concluding that, for the purpose of criterion 3001, the “relevant day” in the case of the applicant was 16 September 2010, and that, therefore, the applicant applied for the Medical visa more than 28 days after the relevant date.  It is beyond argument the Tribunal was correct in so concluding and in concluding that the applicant, therefore, did not satisfy criterion 3001.  There is also no doubt that the applicant is less than 50 years of age. 

18. For these reasons the application discloses no arguable case for the relief it seeks.  I propose, therefore, to order that the application be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  6 June 2017