Zhao v Minister for Immigration
[2018] FCCA 1444
•5 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHAO v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1444 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal’s decision (AAT) – visa – medical treatment visa refusal – where the applicant did not attend the AAT hearing – where Applicant alleges the AAT failed to exercise discretion where no discretion is available to it – no error established – dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration Legislation Amended (2017 Measures No.3) Regulations 2017 (Cth), sch.13 |
| Cases cited: Cakau v Minister for Immigration [2017] FCCA 952 Sayadi v Minister for Immigration [2015] FCA 1235 |
| Applicant: | CHUNHONG ZHAO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 912 of 2017 |
| Judgment of: | Judge Baird |
| Hearing date: | 25 May 2018 |
| Date of Last Submission: | 25 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 912 of 2017
| CHUNHONG ZHAO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth), seeking judicial review of a decision of the Administrative Appeals Tribunal dated 27 February 2017, affirming the decision of a Delegate of the First Respondent dated 7 September 2016, to refuse to grant the Applicant a Medical Treatment (Visitor) (class UB) Visa.
The Applicant, Ms Zhao, was born on 10 December 1968 in China and is a Chinese citizen. Whilst the evidence does not reveal when she arrived in Australia, according to the Delegate’s decision record, the last substantive visa she held was a tourist visa TR-676 which ceased on 8 March 2013.
Procedural history
Ms Zhao applied for the Visa on 15 August 2016, within Australia. She applied 3 years, 5 months and 9 days after the cessation of her last substantive visa. She was the only person included in the application. Apart from ticking the box indicating that she was applying onshore as “a person who will attend a medical consultation” Ms Zhao gave no details of her medical condition. In her application for the Visa she stated that she has a daughter and a son-in-law with whom she resides in Australia. She stated that she has visited or lived in Australia from 8 December 2012 up to the date of her application.
Relevant legislation
Section 65(1) of the Act requires that an application for a visa meet the eligibility criteria of the visa. At the date of Ms Zhao’s application for the Visa, the criteria for the grant of a Medical Treatment (Visitor) (class UB) visa specified in the Migration Regulations 1994 (Cth) were the eligibility criteria contained in Subclass 602 of Schedule 2 of the Regulations. The note in clause 602.2 states that all applicants (save some immaterial exceptions), must satisfy the primary criteria set out in clause 602.2, and all criteria must be satisfied at the time a decision is made on the application (namely, at the time of the Delegate’s decision). The primary criteria were specified in clauses 602.211 to 602.219B.
Relevantly, as at 16 August 2016, Ms Zhao had to satisfy clause 602.213. Because Ms Zhao did not hold a substantive temporary visa at the time of her application, she had to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005, unless the exception in sub‑clause 602.212(6) applied. Clause 602.213 provided:
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) 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.
(3) Subclause (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 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.
The operation of the clause 602.213 and of criterion 3001 were explained by Perram J in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235, at [9]-[18], his Honour at [17] describing the rules as Byzantine. If subclause 612.213(3) is enlivened (as I have said, because, inter alia, the applicant was in Australia at the time of the application, did not hold a substantive temporary visa, and the requirements in subclause 612.212(6) were not met), then the relevant criteria that must be met are those in subclauses 612.213(4) and (5). In turn, then, an applicant must satisfy the specified Schedule 3 criteria.
Relevantly, criterion 3001(1) required that “the application is validly made within 28 days after the relevant day”. Criterion 3001(2)(c) defined “relevant day” as the later of the day when the applicant last entered Australia unlawfully, or the day when the applicant last held a substantive visa, in the following terms:
3001
(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:
…
(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
…
(the terms that are relevant to Ms Zhao are italicised)
Whilst clause 602.213 of Schedule 2 was amended on 1 July 2017 by Schedule 3 of the Migration Legislation Amended (2017 Measures No.3) Regulations 2017 (Cth), removing the requirement that a visa applicant satisfy criterion 3001, the amendment only affects applications for medical treatment visas made on or after 1 July 2017: see Regulations, Schedule 13, Part 65, item 6503.
Delegate’s decision
In the Delegate’s decision, the Delegate stated that cl.602.213 in Schedule 2 and the additional Public Interest Criterion 3001 in Schedule 3 of the Regulations had not been met by the Applicant on the date the Delegate made the decision. The Delegate set out the terms of clause 602.213, and stated that criterion 3001 required the application for visa to be validly made within 28 days after the day when the last substantive visa ceased to be in effect. The Delegate stated that the Applicant did not hold a substantive temporary visa at the time of application, that the application was not validly made within 28 days and that the criteria for the grant of a Medical treatment (visitor) visa were not met by the Applicant. Thus, the Delegate informed Ms Zhao of the relevant statutory provisions and their effect, and the basis of the refusal to grant the Visa.
Proceeding before the Tribunal and decision
On 26 September 2016, the Applicant lodged her application for review with the Tribunal.
On 16 January 2017, by letter under cover of email, the Tribunal invited the Applicant to attend a hearing before it on 27 February 2017. The invitation letter erroneously requested information relevant to a student visa application.
Later that same day, the Tribunal emailed the Applicant asking her to disregard the first letter, and enclosed an amended hearing invitation letter. The amended invitation letter specified the date, time and location of the hearing, informed the Applicant of the consequences of non‑attendance, and enclosed a leaflet containing information about hearings, dismissals and her rights. In relation to the time of the hearing, the Tribunal informed the Applicant that “Your hearing is scheduled to start at 9:30am and is one of several cases to be heard in the following two hours”.
In the amended invitation letter, the Tribunal informed Ms Zhao of one of the issues it would be considering at the hearing, as follows:
One of the issues we will be considering at the hearing is whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application and, if not, whether there are any compelling reasons for not applying these requirements. Circumstances which constitute compelling reasons for not applying these requirements can arise at any time, including after the visa application was made. We request that if you have any additional relevant material you wish to rely upon at the hearing you should provide it no later than 20 February 2017.
As is apparent from the terms of clause 602.213 and the Schedule 3 criteria, the reference to compelling reasons was incorrect. On 10 February 2017 the Tribunal wrote to the Applicant correcting itself and the amended invitation letter, advising that the above paragraph (which it set out) should be replaced with the following:
“One of the issues we will be considering at the hearing is whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application.”
The Tribunal further stated:
Please note that all details about the hearing, including the date, time and location, as set out in the hearing invitation letter dated 16 January 2017, still apply
(underlining as per the correction letter).
On 23 February 2017, the Applicant emailed the Tribunal, advising the Tribunal she did not wish to attend the hearing. In her email, and also in her enclosed letter, Ms Zhao said:
I regret to inform you that I do not wish to attend the hearing on the 27th February because I'm suffering and I have compelling reasons which include sadness and sickness after my husband left Australia on 12th Oct 2016. I'm currently with my daughter who support me financially and emotionally.
My daughter is now the only person who I rely on for support my life In Australia. It's very hard. I miss my husband very much and I'm not able to travel to China because of my health and also my husband is suffering in China. Please use your power to allow me to stay permanently in Australia with my daughter and her partner. Thank you and I await to hear from you.
Kind regards
The Tribunal responded to the Applicant by email on 24 February 2017 and advised that:
I would like to bring to your attention that the Member does not have any power to consider discretionary or compelling reasons as to why you lodged your visa application 28 days past the due date.
Given this, do you still wish to not attend the hearing and if so, can you please confirm if you would like the member to make a decision on the papers based on the evidence before the Tribunal.
The Applicant replied by email on the same day saying:
Dear officer, I would like the member to make a decision on the papers please. Thank you.
On 27 February 2017, the Tribunal determined the application, affirming the decision of the Delegate to not grant the Applicant the Visa.
Tribunal’s determination of the application
The Tribunal stated that the issue before it was whether the application was lodged within the timeframe required by the Act. The Tribunal referred to schedule 2 cl.602.213 of the Migration Regulations 1994 (Cth), and to schedule 3 criteria 3001, 3003, 3004, and 3005.
At [7] the Tribunal summarised cl.202.213 as follows:
Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
The Tribunal continued at [8]:
In the present case, the applicant last held a substantive visa on 8 March 2013. She made the current application for a medical treatment (visitor) visa on 16 August 2016. Therefore the applicant does not meet cl.602.212(6), as she did not hold a substantive temporary visa at the time of application, and the last such visa held was not a subclass 403 or 426 visa. In the circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.
The Tribunal found that the application was made more than 28 days after the “relevant day” set out in the Regulations. It found that the Applicant did not satisfy criterion 3001. The Tribunal stated that it has no jurisdiction under the Act to waive the requirement that the application be lodged within 28 days of the relevant day. It affirmed the decision of the Delegate.
Typographical error
As the Minister acknowledges in this Court, the reference to clause 602.212(6) in paragraph [8] of the Tribunal decision is in error. That subclause relevantly dealt with the circumstances in which an Applicant would be considered “medically unfit to depart Australia,” whilst the matters to which the Tribunal refers are not relevant to the satisfaction of that subclause, but instead, refer to other criteria in cl.602.213. Pursuant to cl.602.213(3)(c), failure to satisfy the conditions of subclause 602.212(6) (alongside other conditions), were preconditions to the application of sub-cl.602.213(4), and crucially, sub-cl.602.213(5), the last requiring compliance with criterion 3001. The relevance of these preconditions thus depended upon, in part, the Applicant’s non‑satisfaction of clause 602.212(6). In the present case, the Applicant did not meet at least one requirement of subclause 602.212(6), namely subparagraph (b), that she had turned 50. In addition, the Applicant did not provide any written statement as to her medical unfitness to depart Australia as required by subparagraph (f). Thus, the Tribunal was correct to apply sub-cl.602.213(3), and sub-cl.602.213(5) of the Act and require the Applicant to satisfy criterion 3001.
I consider that the Tribunal’s reference to sub-cl.602.212(6) at [8] should be considered a typographical error. I note that Judge Smith of this Court in Cakau v Minister for Immigration and Border Protection [2017] FCCA 952, [15]–[24], dealing with an identical passage in the Tribunal’s reasons in that case, adopted this approach, and I am guided by that decision to do so in the present case. It may be inferred that the Tribunal did in fact consider whether the medically unfit to depart requirements of sub-cl.602.212(6) were met and conclude that they were not, as a failure to satisfy this subclause, as I have explained above, is the only basis on which sub-cl.602.213(5) and criterion 3001 fell to be considered. The Tribunal’s explicit reference to the existence of clause 602.212(6) at [7] further supports the inference that the Tribunal did consider that subclause, and that the reference to sub-cl.602.212(6) at [8] was a typographic error.
Given the Applicant’s age (she was born 10 December 1968 according to her visa application form), the Applicant could never have satisfied the conditions of subclause 602.212(6) as she had not yet “turned 50”. Even if some legal problem had been identified with the Tribunal decision arising from the above error, which I have characterised as a typographical error, for the reasons set out below at [31] it would be futile to remit the case to the Tribunal. This is because the Applicant cannot qualify for the visa she has sought. This is because, in turn, she cannot satisfy criterion 3001, which was, and is, fatal to Ms Zhao’s visa application.
Grounds of review
In her application to this Court, Ms Zhao raised 2 grounds of review, as follows (without alteration):
(1) Even though the Tribunal offered me to appear I was told that the Tribunal will see many cases at one time. Therefore I decided to have a decision without appearing but I previously explained my compelling circumstances and the Tribunal failed to consider it.
(2)The Tribunal was aware as to what happened to my husband who was deported and as a result I suffered depression. The Tribunal did not consider my circumstances and failed to put any information to me in writing and failed to give me a proper interview rather treating my case with other people. Therefore the Tribunal denied me privacy and natural justice.
The proceeding in this Court
On 27 March 2017, Ms Zhao commenced the current proceeding.
The Applicant appeared in person before the Court, with the assistance of an interpreter. I explained the effect of non-satisfaction of criterion 3001, and the cost consequences if she proceeded with her application in circumstances where, as in the present case, criterion 3001 was not satisfied, and if, as requested by the Minister’s legal representative, she had a costs order made against her. Ms Zhao confirmed that she understood, that she relied on the grounds of review set out above, and that she wished to proceed.
Ms Zhao said that she agreed that she did not have a lawful substantive visa. She said that one of the major reasons she is under stress is that her daughter, she said, has suffered unfair treatment, because although her daughter has known her husband (Ms Zhao’s son-in-law) for 5 years and been married for 3½ years, and that her daughter is expecting a child, she still can’t get a proper visa, and that the Department’s refusal to accept the marriage is very traumatic to Ms Zhao, mentally and psychologically. Ms Zhao made submissions expanding upon these concerns.
Consideration
As a preliminary matter, at the time of the Delegate’s decision, non‑satisfaction of criterion 3001 was fatal to the grant of a medical treatment visa, and thus fatal to Ms Zhao’s application for Visa. If the criterion was not met, and it was not, Ms Zhao was simply not eligible for the Visa, and the Minister, and on review, the Tribunal, were bound to refuse her application, notwithstanding Ms Zhao’s grounds, or the matters Ms Zhao raised in her emails to the Tribunal. It did not have any discretion to do otherwise. It follows that the Tribunal made no error in not exercising discretion, as the Tribunal had no discretion it could exercise.
The Applicant’s pleaded grounds
The Applicant’s pleaded grounds overlap and do not readily particularise the precise bases on which she asserts the Tribunal fell into error. The Minister’s legal representative has submitted, and I agree, that the Applicant may be understood as asserting the following:
(a)by listing “many cases at one time” (ground (1)) and “treating my case with other people” (ground (2)), the Tribunal failed to invite the Applicant to appear before it to give evidence and present argument in accordance with s.360(1) of the Act, and “denied me privacy and natural justice” (ground (2));
(b)the Tribunal “failed to put any information to me in writing” and “denied me … natural justice” (ground (2)), and, accordingly, failed to comply with s.359A of the Act by failing to give to the Applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (as s.359A provides); and
(c)the Tribunal fell into jurisdictional error by failing to consider the Applicant’s “previously explained my compelling circumstances”, being “what happened to my husband who was deported and, as a result, I suffered depression”.
(a) Failure to give proper interview and listing of multiple cases
As I have identified above, in its amended hearing invitation letter dated 16 January 2017, the Tribunal advised the Applicant that “your hearing is scheduled to start at 9.30 am and is one of several cases to be heard in the following two hours”.
Nothing in the Act or the Regulations entitles applicants (in Part 5 reviewable matters) to have their matters heard individually or in private. Indeed, s.365 of the Act requires that any oral evidence the Tribunal takes while a person is appearing before it must be taken in public, unless that is impractical or it is in the public interest to take the evidence privately. The fact that there are people, including other visa applicants, in the hearing room during an applicant’s hearing has been held to not of itself amount to a jurisdictional error: eg, Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860, [24]; Rathor v Minister for Immigration and Border Protection [2014] FCCA 2173 at [22] – [24] (Barnes J).
I do not read the Tribunal’s statement as stating that it proposed to hear multiple cases at the one time, rather that it had listed individual cases to be heard within the two hour time period.
Further, nothing on the material before the Court indicates that the Tribunal’s proposed method of hearing Ms Zhao’s application would have impacted on her ability to give evidence and present argument or her opportunity to have her case properly considered. It is apparent from the Tribunal’s reasons at [11] that, had she chosen to attend, she would have had the opportunity to raise any issues she wished and would have had an opportunity to comment on the circumstances of her case.
I also note that the Tribunal sought confirmation from Ms Zhao before the hearing date that she still did not wish to attend the hearing and, as is apparent from her email in response on 24 February 2017 (see above at [18]) she made a fully informed and voluntary choice to have her matter resolved in her absence. I also note that the Applicant did not express any difficulty with the Tribunal’s proposed course of action at any time prior to her application to this Court. She did not request the Tribunal to exercise its power to take evidence in private, and there is no material to suggest that any feature of the matter or the proposed hearing placed the Tribunal under an obligation, stemming from the principles of reasonableness, to consider exercising its discretion to take evidence in private: see by analogy Kumar at [34].
The Applicant fails to demonstrate that the Tribunal fell into jurisdictional error.
(b) Failure to put information in writing
Nothing in the material filed by the Applicant identifies what information it is alleged that the Tribunal failed to put to her. The assertion is vague and non-specific. This lack of particularisation is itself a sufficient basis on which to dismiss this claim of error: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, per Gilmour J at [35].
The Applicant’s contention is further contrary to the conduct of the Tribunal, as disclosed in its correspondence to the Applicant in its letter of 10 February 2017, correcting text of the amended hearing invitation letter dated 16 January 2017 (which correction is set out above at [14]), and the Tribunal’s email dated 24 February 2017 (which is set out above at [17]).
Both the above referred to items of correspondence, refer to the timeframe requirements for lodgement of Ms Zhao’s visa application. These requirements were clearly set out in the Delegate’s decision, including in the Delegate’s reference to schedule 3, criterion 3001 (see above at [9]). By the letter dated 10 February 2017, and by the email dated 24 February 2017, the Tribunal put the Applicant clearly on notice of the Applicant’s non-satisfaction of schedule 3, criterion 3001. That non-satisfaction of criterion 3001 formed the sole basis of the Tribunal’s decision. Ms Zhao had the opportunity to attend the hearing and to put submissions. She declined to provide any relevant comments, and she declined to appear at the hearing, and expressly invited the Tribunal to make a decision on the papers. No error is made out.
(c) Failure to consider compelling circumstances
The Applicant proffered the reasons set out in her email and letter dated 23 February 2017 (set out at [16] above), as compelling reasons to grant the Visa. The Tribunal did not advert to the matters identified by the Applicant.
Ms Zhao expanded upon those matters before me. Ms Zhao additionally claimed to be suffering because of matters relating to her daughter and son-in-law.
First, as to the matters raised by Ms Zhao in her email of 23 February 2017, once the Tribunal was satisfied that the Applicant had not filed her application for the Visa within 28 days of the relevant date (namely by 28 days after 8 March 2013), the Applicant’s “compelling circumstances” were not relevant. The Tribunal had no discretion to consider whether to waive criterion 3001. In those circumstances, the Tribunal could not, and did not, fall into error by failing to take into account, or give weight to the asserted “compelling circumstances”, regardless of any apparent cogency or merit of those claims.
Secondly, as to the additional matters raised before the Court concerning the circumstances of the Applicant’s daughter and son-in-law, and the stress and pressure that the Applicant expresses as having affected her as a result of those circumstances, I note that there are no family members forming part of her application indicated on Ms Zhao’s application for Visa. Whatever may be the circumstances bearing on any separate application for visa involving other family members, those are not matters that are relevant to the application before the Court.
In any event, as with the “compelling circumstances” raised by Ms Zhao in her email of 23 February 2017, where, as here, an applicant fails to satisfy the objective standard of criterion 3001, the Tribunal has neither discretion, nor jurisdiction, to proceed to consider the reasons for that non-compliance, or to “waive” the need for compliance with that condition: Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235, [18]; see also Tang & Anor v Minister for Immigration & Anor [2017] FCCA 2773, [10], [16]; Tang v Minister for Immigration and Border Protection [2018] FCA 731 per Moshinsky J at [14]–[15]. No error is made out.
Conclusion
Even if some legal problem had been identified with the Tribunal decision, it would be futile to remit the case to the Tribunal. This is because consistently with Sayadi, Ms Zhao cannot qualify for the visa she has sought. She cannot satisfy criterion 3001, which was fatal to her application.
For the reasons set out above, I find that the Applicant’s grounds of review do not demonstrate any jurisdictional error. The application must be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 5 June 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
1
7
4