ZAHOOR v Minister for Immigration

[2018] FCCA 2532

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAHOOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2532

Catchwords:
MIGRATION – Administrative Appeals Tribunal – show cause hearing – medical treatment (visitor) (class UB) (subclass 602) visa – application for visa not lodged within 28 days of cessation of last substantive visa – no arguable ground of review.

Legislation:

Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Regulations 1994, cl.602.213 of Schedule 2, criterion 3001 of Schedule 3

Applicant: FAHAD ZAHOOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1356 of 2017

Judgment of: Judge Riley

Hearing date: 20 June 2018

Date of last submission: 20 June 2018

Delivered at: Melbourne

Delivered on: 20 June 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Georgie Turnbull
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Mills Oakley

ORDERS

1. The application filed on 26 June 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1356 of 2017

FAHAD ZAHOOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 20 June 2018. The applicant filed an application for extension of time and leave to appeal on 10 July 2018. The registry advised chambers on 1 August 2018 that the applicant had filled an application for extension of time and leave to appeal. Chambers ordered a transcript of the reasons for judgment on 1 August 2018. Auscript provided the transcript of the reasons for judgment on 6 June 2018. The judge was then on leave. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 7 September 2018.

1. This is a show cause hearing in relation to an application to review a decision of the Administrative Appeals Tribunal which affirmed a decision not to grant the applicant a medical treatment visa.  The applicant came to Australia on a student visa to study at Curtin University in Western Australia, undertaking a Masters of Telecommunications.  It seems that he left the course after one semester.  He then came to Melbourne and enrolled in a Masters of Information Technology at La Trobe University in September 2010.  He did not complete that course and his visa ceased in March 2014.

2. In March 2014, the applicant applied for a protection visa.  A delegate of the Minister for Immigration and Border Protection refused that application.  The applicant sought review by the Tribunal and the Tribunal affirmed the delegate’s decision not to grant the protection visa. 

3. The applicant then applied for a medical treatment visa on 31 January 2017.  The applicant said that his need for medical treatment arose from a back injury and that he needed physiotherapy.  In the applicant’s visa application, he provided a referral from a GP, which indicated that he had been referred for physiotherapy on 26 January 2017.

4. The delegate refused to grant the medical treatment visa by a decision dated 6 February 2017.  The delegate’s decision record set out the relevant parts of the Migration Regulations 1994 (“the Regulations”), including cl.602.213 of Schedule 2 of the Regulations, which was as follows:

   (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 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.

5. The delegate said in her reasons that departmental records indicated that the applicant’s last substantive visa ceased on 15 March 2014. The delegate noted that the applicant did not hold a substantive visa at the time of application and, accordingly, did not meet subclauses 602.213(1) or 602.213(2) of Schedule 2 of the Regulations.

6. The delegate noted that the medical treatment visa application was received on 30 January 2017, more than 28 days after the applicant’s last substantive visa had ceased. The delegate said that, as the medical treatment visa application was not validly made within 28 days after the applicant ceased to hold a substantive visa, the applicant did not satisfy criterion 3001 of Schedule 3 of the Regulations (“criterion 3001”), and therefore did not satisfy criteria 602.213(3), (4) or (5) of Schedule 2 of the Regulations.

7. Criterion 3001 was as follows:

   (1)  The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)  For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)  if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

   (b)  if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

   (c)  if the applicant:

   (i)      ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)  the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   (d)  if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

   (i)      the day when that last substantive visa ceased to be in effect; and

   (ii)     the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

8. The applicant then applied for review by the Tribunal.  The Tribunal set the matter down for hearing on 27 April 2017.  The applicant sought an adjournment, which the Tribunal granted.  The hearing was rescheduled for 26 May 2017, and the applicant attended on that date and gave evidence. 

9. The Tribunal noted the history of the matter and, in particular, that the applicant was subject to criterion 3001. The Tribunal noted that the applicant did not meet criterion 3001 because he had not applied for his medical treatment visa within 28 days of the cessation of his last substantive visa. Consequently, the Tribunal held that the applicant did not meet the relevant criteria and affirmed the delegate’s decision.

10. The applicant applied to this court on 26 June 2017.  The application, under the heading Grounds of application, says as follows:

    1. I came to Australia in 2010.

    2. I applied for Medical Treatment visa, Which was refused on 06/02/2017.

    3. I applied in AAT for the Review of my application and they invited me to comment on my case on 26/05/2017.

    4. As [I] was keen to know my decision and, [I] attended the hearing on 26/05/2017.

    5. Tribunal and department of immigration refused my visa on 29/06/2017 as according to them, the criteria to grant the Medical treatment visa is not met.

    6. For me it was very surprising as [I] was fully confident for my case as it was genuine.

    7. During the hearing, [I] gave all the supporting evidences in support of my case and tribunal agree that the circumstances in which the grounds for refusal arose are not the fault of the applicant and beyond our control.

    8. I was shocked to see the behaviour of the member as she was not listening to what [I] want to say and provide in support of my case.

    9. AAT finished my hearing within 15 minutes and took no further evidences or let me explain my case.

    10. I requested to the case officer that the Law (Section 48) under which she is refusing my case does not apply to Medical Treatment visa but she did not let me speak any further.

    11. Tribunal did not consider my medical condition and concluded that [I] do not satisfy the criteria for medical treatment visa and gave biased decision.

    12. I am not satisfied with the decision made by Administrative Appeal tribunal and Department of immigration and border protection as their ground to refuse my visa is not appropriate and lack detail.

    13. They did not provide any knowledge and time that can be helpful in support of my application.

    14. So, I want to apply in Federal Circuit Court for the right review of my Application according to correct Law.

11. The applicant appeared on his own behalf in court today.  He did not seek to address any of the grounds in the application. 

12. The matters that the applicant has raised indicate a possible jurisdictional error in that it is alleged that the Tribunal was biased.  However, there is nothing to substantiate that allegation. Even if allegations of bias were made out, the applicant acknowledged in court today that his last substantive visa ceased on 15 March 2014.  He applied for the medical treatment visa on 31 January 2017.  Consequently, it is clear that the applicant did not meet the criteria for the medical treatment visa, which relevantly required him to apply within 28 days of the cessation of his last substantive visa.  Furthermore, even if there had been some jurisdictional error on the Tribunal’s part, it would be futile to remit the matter for further consideration. 

13. The applicant also said in his grounds that the Tribunal did not provide him with any knowledge that could be helpful in support of his application.  It is not the Tribunal’s role to provide the applicant with knowledge for the purposes of his application.  All the Tribunal needs to do is alert the applicant to the determinative issues if they are not already apparent.  In this particular case, the determinative issues were apparent because the delegate’s decision set them out very clearly.

14. The applicant elaborated on this point in oral submissions before the court today.  He claimed that there is something called a form 1507 that people whose substantive visas have already expired can fill in and they can somehow, by the use of that form, get a medical treatment visa.  The applicant claimed that the Tribunal member did not give him that form and the implication was that if the Tribunal member had, there would have been a completely different result. 

15. Form 1507 is headed Evidence of intended medical treatment.  It includes a note to persons in Australia who are intending to apply for a subclass 602 (Medical Treatment) visa.  That note, in itself, indicates clearly that the form relates to medical treatment visas.  It does not relate to some other category of visa that might apply to people wanting medical treatment.  It applies to a subclass 602 (Medical Treatment) visa.  As already discussed, the requirements for that visa include that the application be made within 28 days of the last substantive visa ceasing. 

16. In any event, the form says at the beginning:

    Note to persons in Australia who are intending to apply for a subclass 602 (Medical Treatment) visa: You will need to have this form completed and signed by a registered medical practitioner to make your application in Australia if you do not hold a substantive visa at the time you apply.

17. The applicant seems to have understood that to mean that anyone who does not have a substantive visa can fill in the form 1507 and then get some kind of visa to stay in Australia.  That is not what the notes on the form mean.  They mean that if a person does not have a substantive visa at the time of the application for the medical treatment visa, they must also provide a copy of the form 1507 at the time they lodge their medical treatment visa application.  There is no substance to the applicant’s point about the form 1507.

18. The applicant also claimed that the Tribunal hearing finished within 15 minutes.  The hearing record actually indicates that it took 23 minutes. However, either way, the length of the hearing does not mean anything about whether a jurisdictional error was made.  Once it was apparent to the Tribunal that the applicant could not satisfy criterion 3001, there was no benefit to anyone in prolonging the hearing. 

19. The applicant also said in his application that he was shocked that the Tribunal member did not listen to what he was saying.  However, he has provided no transcript or other evidence to support that claim.  In any event, as I have already stated, once it was apparent that the applicant could not meet criterion 3001, it was unnecessary for the Tribunal to listen to anything else the applicant wanted to say. 

20. Otherwise, the applicant, in his application, just recounts the history of the matter and expresses his confidence that his case was genuine.

21. The applicant also asked the court rhetorically:

    What is a person whose substantive visa has expired expected to do if they need a medical treatment visa? 

22. The court is not here to answer such questions.  If the applicant wishes to pursue that line of inquiry, he will need to seek his own legal advice. 

23. It is clear to me that the applicant does not have an arguable ground of review. The Tribunal made the only decision that it could have made in the circumstances, and the only decision it could make even if the matter were remitted to the Tribunal for further consideration.  Consequently, remitting the matter would be futile.  As there is no arguable ground of review, the application must be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  7 September 2018