YANG v Minister for Immigration

[2017] FCCA 1417

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1417

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.602.211, 602,212, 602.213 in Part 602 of Schedule 2, Schedule 3

Applicant: YONGKANG YANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2969 of 2016

Judgment of: Judge Street

Hearing date: 23 June 2017

Date of Last Submission: 23 June 2017

Delivered at: Sydney

Delivered on: 23 June 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Donald  
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

DATE OF ORDER: 23 June 2017

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2969 of 2016

YONGKANG YANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 October 2016 affirming the decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. 

2. The applicant is a citizen of China and arrived in Australia as the holder of a Student (Temporary) (Class TU) visa and the last substantive visa held by the applicant expired on 4 December 2011.

3. The applicant has been granted various bridging visas and lodged an application for a protection visa which was refused. The refusal was affirmed by a differently constituted Tribunal and an application to the Federal Circuit Court was dismissed. 

4. Following that unsuccessful application for a protection visa, the applicant on 10 May 2016 lodged an application for a medical treatment visa. On 13 May 2016, the delegate refused to grant the applicant a medical treatment visa. 

5. On 1 June 2016, the applicant applied for review. On 16 September 2016, the Tribunal wrote to the applicant inviting the applicant to attend a hearing on 6 October 2016.  The applicant appeared on that date to give evidence and present arguments. 

6. The Tribunal identified that the criteria for the grant of the visa were set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).  The Tribunal noted that the delegate found that the applicant failed to satisfy cl 602.213 of Schedule 2 to the Regulations.

7. The Tribunal summarised the delegate’s findings and that the delegate found that the last substantive temporary visa was held on 4 December 2011. The delegate found that the applicant did not hold a substantive temporary visa at the time of the application for the subclass 602 visa and found the applicant did not meet the requirements of cl 602.213(1) and (2) of Schedule 2 to the Regulations. The delegate found the application for the subclass 602 visa was not made within 28 days of the applicant ceasing to hold a substantive visa. The delegate found the applicant did not satisfy Schedule 3, criterion 3001 of the Regulations. 

8. The Tribunal identified that the relevant issue in the present case was whether the applicant satisfied cl 602.213 of Schedule 2 to the Regulations. The Tribunal noted that cl 602.213 applies to applicants who are in Australia at the time the visa application was made and relevantly, requires that the applicant at the time either held a substantive temporary visa of a specified type, or if the applicant did not hold a substantive temporary visa, and is not medically unfit to depart Australia then certain additional requirements are met. Those additional requirements are that the last held substantive visa was not a subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

9. At the hearing, the Tribunal discussed with the applicant the requirements of cl 602.213. The applicant agreed with the details recorded in the delegate’s decision record being that his last substantive visa was held on 4 December 2011 and that his present application was made on 10 May 2016. The applicant gave evidence that he had not held either a subclass 426 or subclass 403 substantive temporary visa and that he was born in 1990 (and is under the age of 50 years) being one of the requirements of cl 602.212(6) and as such, a requirement of cl 602.213(3).

10. The Tribunal found the applicant did not meet cl 602.212(6), did not hold a substantive temporary visa at the time of the application, and that the last such visa held, was not a subclass 403 or 426 visa. The Tribunal found the applicant did not meet the criteria under 602.213(1) to (4). It was in these circumstances the Tribunal found that the applicant had to comply with clause 602.213(5) by meeting the Schedule 3 criteria, 3001, 3003, 3004 and 3005.

11. The Tribunal turned to the issue as to whether the applicant met the criterion in 3001 which required that the application be lodged within 28 days of the relevant day, which in the present case was within 28 days of 4 December 2011. The Tribunal found the applicant ceased holding a permanent temporary substantive visa on 4 December 2011 which was the relevant day.

12. The present application was made on 10 May 2016 and accordingly, the Tribunal found that the applicant did not satisfy criterion 3001. For those reasons, the Tribunal found that the applicant did not satisfy cl 602.213 of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. On 9 March 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was unlawful or unfair. The Court explained that if the Court was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if it was not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed and an order for costs would be made against the applicant in accordance with the scale.

3. The Court explained it would have identified the evidence, then hear submissions from the applicant and provided the applicant put submissions, the Court would then call upon the solicitor for the first respondent to put submissions. The Court would the give the applicant an opportunity to put submissions in reply. The applicant confirmed he understood the nature of the hearing as explained by the court. 

4. The Court explained to the applicant that the written submissions of the first respondent contended that the Tribunal’s decision was not unlawful and was not unfair. 

5. From the bar table, although intended to do so, the applicant declined to make submissions in support of the application. 

6. The grounds of the application are as follows and include three paragraphs under the “Final order sought by applicant/s” and three grounds under the “Grounds of application”:

   Final orders sought by applicant/s

   1, I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for medical visa onshore.

   2. They did not consider the fact that I had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.

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

   Grounds of application

   1, 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 situation beyond my control.

   2, 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

   3, I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

Paragraphs under “Final orders sought”

Paragraph 1

1. Paragraph 1 under the orders sought is a disagreement with the Tribunal’s decision. The applicant’s reference to having a genuine intention to apply for a visa is irrelevant and does not refer to, or identify any relevant error by the Tribunal in its reasons in finding that the applicant did not meet the criteria for the visa. Paragraph 1 fails to make out any jurisdictional error. 

Paragraph 2

1. Paragraph 2 refers to the Tribunal not considering compelling reasons for the applicant not holding a substantive visa. This was not a relevant consideration and had no relevance in relation to the application of the visa in the present case. Paragraph 2 under the orders sought does not make out any jurisdictional error. 

Paragraph 3

1. Paragraph 3 makes a reference to the delegate’s decision. This Court does not have jurisdiction to review the delegate’s decision. To the extent that paragraph 3 refers to the Tribunal’s decision, it seeks to invite this Court to engage in impermissible merits review and does not identify any jurisdictional error.

“Grounds of Application”

Ground 1

1. In relation to ground 1, this merely asserts the criteria the applicant had to meet and does not identify any jurisdictional error. 

Ground 2

1. Ground 2 erroneously asserts an entitlement to consider the applicant’s special situation. There is no such power given to the Tribunal. The Tribunal correctly identified the relevant criteria for the grant of the visa. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and the review was conducted in accordance with the requirements of procedural fairness. Ground 2 fails to make out any jurisdictional error. 

Ground 3

1. In relation to ground 3, this reflects a disagreement by the applicant with the Tribunal’s adverse decision. This Court does not have power to revisit the merits or to make fresh findings of fact upon the criteria for the visa.  Ground 3 fails to make out any jurisdictional error. 

Conclusion

1. As the application fails to disclose any jurisdictional error, accordingly, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 June 2019