Zheng v Minister for Immigration

[2017] FCCA 1579

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHENG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1579

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a medical treatment visa under subclass 602 of the Migration Regulations 1994 (Cth) – Administrative Appeals Tribunal found applicant did not intend to remain temporarily in Australia for the purposes of the medical treatment visa and could not meet both cl.602.211 and cl.602.215 – assertion of jurisdictional error on the part of Tribunal – “compelling and compassionate circumstances” not relevant and Tribunal had no discretion and refusal of medical treatment visa inevitable – no jurisdictional error – application for judicial review refused.

Legislation:

Migration Regulations 1994 (Cth)

Applicant: YUCHEN ZHENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3533 of 2016

Judgment of: Judge Dowdy

Hearing date: 23 June 2017

Delivered at: Sydney

Delivered on: 12 July 2017

REPRESENTATION

The Applicant appeared through his litigation guardian, Ms Yurong Wang

Counsel for the First Respondent: Mr T Liu

Solicitors for the First Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 13 December 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3533 of 2016

YUCHEN ZHENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China being aged 5 years, having been born in Australia on 4 February 2012.

2. By Application filed in this Court on 13 December 2016 he seeks through his mother and litigation guardian to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 1 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 21 March 2016 refusing to grant to him a Medical Treatment (Subclass 602) visa (Medical visa).

Background

1. The Applicant’s mother came to Australia as a student in 2007 to study an English language course, and then to pursue high school studies. After her arrival in Australia she studied for a short time and then abandoned those studies and has remained in Australia since.

2. In 2011 she had apparently applied for a Protection visa but both before the Delegate and the Tribunal the status of that Protection visa application was and remains unclear.

3. The Applicant applied in Australia through his mother for the Medical visa on 16 February 2016. The Applicant stated that the period that he would be under medical care while in Australia was from 10 February 2016 to 10 February 2017. In section 18 of his Medical visa application form, in which he was required to describe the medical treatment in Australia which he had arranged and the estimated cost, he stated:

   I need to make medical consultation with doctor for my stomach problem.

Relevant Grounds for the Grant of a Medical Visa Under Subclass 602

1. At the time of decision the Applicant had to satisfy as primary criteria cl.602.211 and cl.602.215 of the Migration Regulations 1994 (Cth) (Regulations).

2. Clause 602.211 of the Regulations provided:-

   602.211

   The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

3. Clause 602.215 of the Regulations provided as follows:-

   602.215 

   (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c) any other relevant matter.

   (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

4. With respect to cl.602.215(2) of the Regulations, the Applicant obviously could not satisfy cl.602.212(6) in that he had neither turned 50 years of age nor had a written statement from a Medical Officer of the Commonwealth that he was medically unfit to depart Australia: cl.602.212(6)(b) and (f).

Decision of Delegate

1. The Delegate found that the Applicant did not meet both cl.602.211 and 602.215 of the Regulations at time of decision. The Delegate found that the Applicant did not intend to remain in Australia temporarily for the purposes of the Medical visa because the Delegate found that the Applicant since birth and his mother had a continual history of staying in Australia on a Bridging Visa E, in the mother’s case going back beyond 2012, which suggested that the Applicant did not intend to stay in Australia temporarily for the purposes of the Medical visa.

2. The Delegate also found that the Applicant did not meet cl.602.215 of the Regulations. This was because the Delegate considered that the objective of a visit to Australia for medical reasons should be to leave Australia at the completion of the relevant medical treatment but the long history of the Applicant’s mother being on a Bridging Visa E indicated that there was not an intention to remain in Australia temporarily for medical purposes and the Delegate refused the application for a Medical visa.

Decision of Tribunal

1. The Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Medical visa.

2. The Applicant and his mother appeared before the Tribunal on 28 November 2016 to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages. The Tribunal in its Decision Record recorded that the Applicant’s mother told the Tribunal that she came to Australia as a student in 2007 to study but abandoned her studies and applied for a Protection visa in 2011 but she was unable to explain to the Tribunal whether that Protection visa application had been processed and what action had taken place since that Protection visa application was made.

3. At [14] of the Decision Record the Tribunal noted that the Applicant’s mother stated that her “son had a problem with vomiting and his general practitioner had given him medication”. The Tribunal noted that there was no supporting evidence for the Applicant’s claimed medical condition and no specific medical proposals had been submitted, which referred to a medical treatment plan for the Applicant.

4. At [15]-[16] of its Decision Record the Tribunal stated:-

   [15]     Other than for the vague description of the applicant's previous medical issues there is no other evidence indicating that the purpose of the proposed visit is for medical treatment or related purposes and the Tribunal is not satisfied that the applicant intends to visit or remain in Australia for this purpose.

   [16]     Given the above findings, the requirements in cl.602.211 are not met.

5. Further, the Tribunal found that it was not satisfied that the Applicant had a genuine intention to stay temporarily in Australia for the purposes of a Medical visa and therefore that the Applicant did not meet cl.602.215 and the Tribunal affirmed the Delegate’s decision not to grant a medical visa.

Grounds of Attack on Tribunal Decision in this Court

1. In his Application filed in this Court on 13 December 2016 the Applicant posited the following Grounds for review of the Tribunal’s decision (accepting all the below as Grounds and renumbering for convenience):

   Orders sought by Applicant

   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.

   The Grounds of the Application are:

   4. I am an Australian-born child and have a genuine intention for subclass 602. I had to lodge my 602 visa due to my compelling circumstances beyond my control.

   5. 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

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

Consideration

Ground 2

1. This Ground is misconceived and inapt and irrelevant to the Tribunal’s decision. The Tribunal’s decision was based on the Applicant not meeting the requirements of cl.602.211 and cl.602.215 of the Regulations and not with cl.602.213(5) which has the effect of requiring an applicant in certain circumstances to satisfy criterion 3001, which mandates that an application for a Medical visa has to be made within 28 days after the “relevant day” as provided for by criterion 3001(2), and which includes the last day when an applicant held a substantive visa.

2. Accordingly Ground 2 does not establish that the decision of the Tribunal was affected by jurisdictional error.

Grounds 1, 3, 4, 5 and 6

1. Grounds 1, 3, 4 and 6 merely disagree and argue with the Tribunal’s decision and invoke an impermissible merits review and do not establish jurisdictional error.

2. Ground 5, like Ground 2, seems to be related to an argument concerning cl.602.213(5) of the Regulations and criterion 3001.

3. None of these Grounds establish jurisdictional error.

Conclusion

1. Accordingly the Application filed in this Court on 13 December 2016 is to be dismissed.

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

Date:     12 July 2017