ZHANG v Minister for Immigration

[2017] FCCA 1556

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1556

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

Legislation:

Migration Act 1958 (Cth), ss.362B, 476

Migration Regulations 1994, cl.601.213, 602.212, 602.213 of Schedule 2, Schedule 3

Applicant: LI ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3074 of 2016

Judgment of: Judge Street

Hearing date: 5 July 2017

Date of Last Submission: 5 July 2017

Delivered at: Sydney

Delivered on: 5 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Wells
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3074 of 2016

LI ZHANG

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 October 2016 affirming the decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

The delegate’s decision

1. The applicant is a citizen of China who last held a substantive visa more than 18 years ago. On 30 May 2016, the delegate identified the application for the medical treatment visa and the criteria that the applicant had to meet under cl.602.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

2. The delegate identified the requirements in Schedule 3, criterion 3001 to the Regulations which required the application to be validly made within 28 days after the relevant day where a person has not held a substantive visa at the time of application.

3. The delegate found the applicant did not hold a substantive visa at the time of application and did not meet cl.602.213(1) and cl.602.213(2) of Schedule 2 to the Regulations. The delegate identified that the medical treatment visa application was received on 26 May 2016, more than 28 days after the applicant last held a substantive visa. The delegate found that the applicant failed to meet the criteria and refused to grant the applicant a visa.

The Tribunal’s decision

1. On 17 June 2016, the applicant applied for review.  Consistent with the statutory requirements, the Tribunal sent the applicant a letter on 16 September 2016 inviting the applicant to attend a hearing on 16 October 2016.  Notwithstanding the applicant being sent that invitation, the applicant failed to appear on that date. The applicant had not advised the Tribunal that she did not wish to attend and did not seek any postponement of that hearing. 

2. The Tribunal, in its reasons, identified the applicant’s background. The Tribunal identified that the applicant last held a substantive temporary visa on 26 August 1997. The Tribunal identified the evidence finding by the delegate. 

3. The Tribunal identified the invitation sent to the applicant to give evidence and present arguments and the failure of the applicant to engage in a response to that process and a failure of the applicant to appear at the scheduled time and place. The Tribunal noted that the applicant had not contacted the Tribunal either before or after to explain why she did not attend. The Tribunal noted that the applicant had provided a medical certificate relating to February 2016 after she lodged her application for review with the Tribunal on 21 June 2016. The Tribunal noted the applicant had provided no further medical evidence nor any reason why she would be unable to attend the hearing. It was in those circumstances that the Tribunal, pursuant to s.362B of the Act decided to proceed with the review and determine the application.

Consideration of the requirements for the medical visa 

1. The Tribunal found the applicant last held a substantive visa on 26 August 1997 and that her present visa application was made on 26 May 2016. The Tribunal found the applicant did not satisfy cl.601.213(1) and cl.601.213(2) of Schedule 2 to the Regulations as the Tribunal found she did not hold a substantive temporary visa at the time that the applicant lodged the application.

2. The Tribunal then considered cl.602.213(3) of Schedule 2 to the Regulations and whether the applicant met the criteria under cl.602.212(6) of Schedule 2 to the Regulations. The Tribunal identified that all the requirements of cl.602.212(6)(f) of Schedule 2 to the Regulations must be met.

3. The Tribunal was not satisfied that the applicant was medically unfit to depart Australia in accordance with cl.602.212(6) of Schedule 2 to the Regulations. The Tribunal found on the evidence before it that the applicant did not meet the criteria under cl.602.212(6) of Schedule 2 to the Regulations and that she did not satisfy cl.602.213(3) of Schedule 2 to the Regulations.

4. The Tribunal found that the applicant did not meet the criteria under cl.602.213(4) of Schedule 2 to the Regulations. The Tribunal found that in those circumstances, pursuant to cl.602.213(5) of Schedule 2 to the Regulations, the applicant had to meet the criteria in Schedule 3. The Tribunal noted that part of the criteria in Schedule 3 were the requirements of criteria 3001, that the applicant has lodged the application within 28 days of the relevant day. The Tribunal noted that the applicant had not lodged an application within 28 days of the relevant day and found that the applicant did not meet cl.602.213 of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. A Registrar of the Court made orders on 16 March 2017 providing the applicant with an opportunity to put on affidavit evidence, an amended application and submissions. No such documents were filed. 

2. In the application under orders sought, are the following three paragraphs:-

   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.

3. The grounds in application are as follows:-

   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, AA T 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.

4. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering 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 application would be set aside and sent back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair, the Court would dismiss the application and order the applicant to pay the scale costs.

5. The Court explained that it would have identified the evidence and then hear submissions from the applicant. The Court explained that provided the applicant put submissions, the Court would call upon the solicitor for the first respondent and then give the applicant an opportunity to put submissions in reply.

6. From the bar table, the applicant confirmed that she did not wish to put any oral submissions. The applicant confirmed that she understood that this meant that the solicitor for the first respondent would not be called upon to put submissions. The applicant had the first respondent’s written submissions read to her which the Court explained identified why the first respondent said the grounds in the applicant’s application failed to make out any relevant legal error and why the first respondent submitted that the Tribunal’s decision was not unlawful or unfair.

Consideration

Paragraph 1

1. In relation to paragraph 1 under orders sought, this is nothing more than a disagreement with the adverse findings of the Tribunal and does not identify any relevant error. Whether the applicant had a genuine intention to apply for a medical visa was not a relevant criteria.  Further, on the face of the material before the Court, the application for this medical visa was vexatious and had no prospect of success before the Tribunal as the mandatory criteria could not be satisfied. No jurisdictional error is made out by paragraph 1.

Paragraph 2

1. In relation to paragraph 2, there was no requirement in the criteria to consider compelling reasons. The Tribunal properly considered the criteria under the Act. On the face of the material before the Court, the Tribunal complied with its statutory requirements in the conduct of the review and the Tribunal complied with the requirements of procedural fairness. The decision of the Tribunal to proceed with its determination under s.362B of the Act was in the circumstances, reasonable and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by paragraph 2 under the orders sought.

Paragraph 3

1. In relation to paragraph 3, it is apparent that the Tribunal gave the applicant an opportunity to appear before the Tribunal and the applicant failed to appear. The applicant failed to contact the Tribunal to seek more time or to explain either before or after the hearing why the applicant had failed to appear. No jurisdictional error is made out by paragraph 3 under the orders sought.

Ground 1

1. In relation to ground 1, the applicant’s assertion as to her background and her explanation for failing to have a substantive visa does not address the criteria for the relevant visa and is not a basis upon which any relevant error could be made out. No relevant error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal properly identified the relevant criteria and made a decision that was the only decision open in the circumstance of the present case. There was no proper basis to pursue an application for review before the Tribunal in the circumstance of the present case as the mandatory criteria could not be satisfied. The proposition that the applicant had a special situation was not part of the criteria and was irrelevant. No jurisdictional error was made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant’s disagreement with the outcome does not establish any relevant legal error and the applicant’s alleged special situation does not identify any relevant criteria that the Tribunal was required to reply. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. No jurisdictional error is made out by the application. This was an application that might have been the subject of an application under r.44.12 of the Federal Circuit Court Rules 2001 or a summary dismissal application.

2. 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: 6 July 2017