Yang v Minister for Immigration
[2018] FCCA 1286
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YANG v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1286 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision affirming decision of delegate not to grant a Medical Treatment (Subclass 602) (Visitor) visa– applicant made application for medical treatment visa seven years and seven months after the time she was required to apply for it – Tribunal had no discretion based on compelling, compassionate or sympathetic circumstances – grounds relied on by applicant invoke merits review attack on Tribunal decision not available in this Court – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 (Cth) |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 Matar v Minister for Immigration and Border Protection [2017] FCA 1314 Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 Singh v Minister for Immigration v Border Protection [2017] FCA 525 |
| Applicant: | XIAOHONG YANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3142 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr A. Fisher |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 11 October 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3142 of 2017
| XIAOHONG YANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction and Background
The Applicant in this proceeding is a female citizen of China aged 30 years, having been born on 24 December 1987.
By Application filed in this Court on 11 October 2017 she seeks to quash and have redetermined the decision of the Administrative Appeals Tribunal (Tribunal) dated 14 September 2017, which affirmed the decision dated 1 May 2017 of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) not to grant to her a Medical Treatment (Subclass 602) (Visitor) visa (Medical visa).
An applicant for a Medical visa must be seeking to visit or remain in Australia temporarily for the purposes of medical treatment or related purposes: see cl.602.211 in Sch.2 to the Migration Regulations 1994 (Cth) (Regulations).
The Applicant applied for the Medical visa in Australia on 13 April 2017. She said in her Medical visa application that she wanted to remain in Australia for the period from 14 April 2017 to 13 July 2017. She did not identify the medical treatment that she wanted to have undertaken in Australia, or the associated cost.
The last substantive visa that the Applicant held was a Transit (Temporary) (Class TX) visa which ceased on 14 August 2009.
At the date of decision the Applicant had to satisfy cl.602.213, which provided as follows:
602.213
(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 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.
(emphasis added)
As the Applicant did not hold a substantive temporary visa at the time of her application for the Medical visa on 13 April 2017 and could not meet the requirement stated in cl.602.212(6)(b) of the Regulations in that she had not turned 50 years of age it followed, by force of cl.602.213(3), that cl.602.213(5) applied.
Consequently, it was necessary for her to satisfy Criterion 3001 in Sch.3 to the Regulations. Relevantly, Criterion 3001 required that the Applicant’s application for the Medical visa must have been made within 28 days after the “relevant day”, which was the last day on which she held a substantive visa, namely 14 August 2009: see Criterion 3001(1) and 3001(2)(c)(iii).
Unfortunately for the Applicant, she was some seven years seven months and two days, or alternatively 2771 days, late when she applied for the Medical visa on 13 April 2017.
Decision of Delegate
In her decision record of 1 May 2017 the Deleate had regard to cls.602.213 and 602.212(6) and Criterion 3001. She was satisfied that the Applicant last held a substantive visa on 14 August 2009, and had applied for the Medical visa on 13 April 2017.
The Delegate, in those circumstances, found that the Applicant did not satisfy cl.602.213(5), which was applicable, because she could not satisfy Criterion 3001. Accordingly, the Delegate refused to grant the Medical visa to the Applicant.
Decision of Tribunal
The Applicant applied for merits review to the Tribunal on 18 May 2017, and appeared at a Tribunal hearing on 12 September 2017 to give evidence and present arguments.
At the hearing the Applicant confirmed that her last substantive visa ceased on 14 August 2009 and that at the time of her last substantive visa she did not know she that could apply for a Medical visa. She then gave other reasons which are set out in [11] of the Tribunal’s Decision Record as follows:
[11]The applicant submitted that at the time of her last substantive visa, she did not know she could apply for a Medical Treatment visa. She only applied for this visa when she applied for a protection visa for her children. She is awaiting outcomes from the Department. Her application for a guardian visa was refused by the Department, and she felt scared and worried that she would have to leave her child in Australia. This has caused her mental and physical problems. When she came to Australia, she knew very little about legal issues, and could not afford an agent. She was happy when she found out about the Medical Treatment visa, but she was then refused. She said that she cannot leave, as she does not want to leave her children as they would have no one to look after them. The Tribunal acknowledged her submissions and suggested she discuss her options with the Department. The Tribunal explained to her that it has no discretion in relation to the requirements in cl.602.213. She was asked if there was anything further she wished to submit and she said there was nothing further.
In short, the Tribunal was satisfied that at the time of her application for the Medical visa the Applicant did not hold a substantive temporary visa. It also found that the Applicant did not meet cl.602.212(6) as she had not turned 50 years of age, because she was born in 1987. It found that she did not satisfy Criterion 3001 because her application for the Medical visa was made on 13 April 2017 and was, therefore, not made within 28 days of the “relevant day”, being 14 August 2009. Accordingly, the Tribunal found that the Applicant did not satisfy cl.602.213 and it affirmed the decision of the Delegate not to grant to her a Medical visa.
Grounds of Attack on Tribunal Decision
In her Application filed in this Court the Applicant relied on four Grounds, being verbatim:
1.The second and first respondents have not carefully considered my situation and the medical reports I provided to them.
2. The schedule 3 would been applied discretion and I have the compelling reason to waive.
3. The first and second respondents did not fairly assess my application.
4. The first and second respondents did not consider my health condition and the consequence of not let me receive the medical treatment here.
Consideration
I note that this is an area of law where the Tribunal is not entitled to take into account what might be called exceptional circumstances, compelling circumstances, humanitarian circumstances or sympathetic circumstances. It was not open to the Delegate or the Tribunal to take such matters into account, and the Tribunal had no power to exercise any discretion in the Applicant’s favour for such reasons.
The fact of the matter is, in my view, that the Applicant was simply not eligible for a Medical visa. The Delegate was bound to refuse a Medical visa, and the Tribunal was bound to affirm the Delegate’s decision in this regard: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18] to [19] per Perram J; Singh v Minister for Immigration v Border Protection [2017] FCA 525 at [5] to [6] per White J; Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352 at [12] per Dowsett J and Matar v Minister for Immigration and Border Protection [2017] FCA 1314 at [10] per Yates J.
As to Ground 1, the medical reports that are referred to have not been identified by the Applicant and do not appear to be in evidence in the Court Book or otherwise in this proceeding and in any event, having regard to the provisions of the applicable legislation, would be irrelevant.
Ground 2 appeals to compelling reasons to waive the legal requirements, and I have said already that such considerations were not open to either the Delegate or the Tribunal.
Ground 3 is an unparticularised allegation that neither the Delegate nor the Tribunal fairly assessed the Applicant’s application for a Medical visa but there is no evidence that this is so. On the face of the Tribunal’s decision and, although irrelevant, the Delegate’s decision, there seems to have been a fair and legally proper assessment of the Medical visa application.
As to Ground 4, there is no evidence that any particular health condition was identified to either the Delegate or the Tribunal, and in this regard I have already pointed out that the Medical visa application itself does not appear to have identified any medical condition claimed to have been suffered by the Applicant. Having regard to the legislation her health condition would have been irrelevant in any event.
A Final Matter
As a matter of completeness, I note that Mr Fisher, who appeared for the Minister, drew to my attention that cl.602.213 was amended by the Migration Legislation Amendment (2017 Measure No.3) Regulations 2017 by repealing cl.602.213(5). These amendments apply to Medical visa applications made on or after 1 July 2017, but not to a Medical visa application which had already been made prior to that date.
Accordingly, those amendments did not apply to the present Medical visa application and the Applicant in this proceeding needed to satisfy cl.602.213 as in force prior to those amendments: see in particular the decision of Middleton J in Kaur v Minister for Immigration and Border Protection [2017] FCA 1411 at [14] to [16].
Conclusion
Accordingly, in my view, none of the Grounds establish that the decision of the Tribunal is affected by jurisdictional error, and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 May 2018
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