ZHENG v Minister for Immigration

[2016] FCCA 1882

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHENG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1882

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Medical Treatment (Visitor) (Class UV) visa – show cause hearing – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the applicant was denied procedural fairness – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994, Schedule 2, cls.602.211, 602.213, Schedule 3, criteria 3001, 3003, 3004, 3005.

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: YI ZHENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1012 of 2016

Judgment of: Judge Street

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Mr J Palte
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1012 of 2016

YI ZHENG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal made on 6 April 2016 affirming the decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UV) visa. The applicant is a citizen of China. The applicant’s last substantive visa was a student visa, TU571, which ceased on 15 March 2010.

2. The applicant applied for the visa on 22 December 2015. The delegate refused to grant the applicant the visa because the applicant did not satisfy criteria cl.602.211 of the Migration Regulations 1994, as he did not hold a substantive visa at the time of application, and the application was not made within 28 days of when his last substantive visa ceased. The applicant lodged an application for review of the delegate’s decision on 12 January 2016. 

3. By letter dated 29 February 2016, the applicant was invited to attend a hearing on 6 April 2016.  The applicant attended on that date to give evidence and present arguments.  The Tribunal found that it was not in dispute that the applicant’s last substantive visa expired on 15 March 2015.  The Tribunal identified that the applicant needed to meet the requirements of cl.602.213, and, accordingly, that he had to satisfy the requirements of schedule 3, criteria 3001, 3003, 3004 and 3005. 

4. The Tribunal noted that the requirements of criterion 3001 required the last substantive visa application to have been lodged within 28 days of the relevant day.  The Tribunal found that the last substantive visa in respect of the relevant day expired on 15 March 2010.  Accordingly, the Tribunal found that the applicant did not satisfy criterion 3001 for the purposes of cl.602.213(5).  The Tribunal noted that it had no discretion to find that criterion 3001 of schedule 3 is met if the specified timeframes for lodging the visa had not been met.  It is in those circumstances that the Tribunal affirmed the decision of the delegate.

5. The grounds of the application are as follows:

   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 in Australia.

   2. They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for protection visa and could not returned to my home country. 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:

   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 my fears for persecution in my home country.

   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 don't think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia

6. On 9 June 2016, the Registrar of the Court fixed the matter for a show cause hearing and provided the applicant with an opportunity to put on an amended application, affidavit evidence and submissions.  No such documents were filed. 

7. At commencement of the hearing, the Court explained to the applicant that the matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

8. The Court explained that the show cause hearing was to determine whether the Tribunal’s decision could be said to be subject to an arguable case of 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.  The Court explained that, in summary, this meant it was determining whether there was a reasonable argument that the Tribunal’s decision was either unlawful or that the Tribunal’s decision was unfair.

9. The Court explained that if satisfied that there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error the matter would be set down for hearing on another occasion.  The Court explained that if not satisfied that the decision was affected by relevant legal error the application would be dismissed.  The applicant confirmed that he understood what had been said by the Court.  The Court explained that it would have identified the evidence and then hear submissions from the applicant. 

10. The Court explained that, provided the applicant put submissions, it would then hear submissions from the first respondent and then hear from the applicant in reply. The applicant confirmed that he understood what was said by the Court. The applicant put no submissions.

11. In relation to para.1, under the heading “Orders sought by Applicant”, the applicant’s disagreement with the decision does not identify any arguable jurisdictional error. 

12. In relation to ground 2, under the heading “Orders sought by Applicant”, the Tribunal was not required to consider compelling circumstances.  There is no discretion in relation to the application of the criterion 3001.  Paragraph 2 of the orders sought fails to disclose any arguable case of jurisdictional error. 

13. Ground 3, under the heading “Orders sought by Applicant”, simply cavils with the adverse findings by the Tribunal and does not identify any arguable jurisdictional error.

14. Under the heading “The Grounds of Application are”, the applicant, in substance, advances his claims and asserts that he was not treated fairly. There is nothing in paras.1 to 3 of the grounds of application disclosing arguable jurisdictional error.  On the face of the material before the Court, the applicant’s application to the delegate for the visa was hopeless, and the application for review was doomed to failure and had no merit.

15. The Tribunal, on the face of the material before the Court, complied with its statutory obligations. There is nothing on the material before the Court to suggest the applicant was denied procedural fairness in the conduct of the review. I am clearly satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.  I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

16. The applicant’s application fails to identify any arguable jurisdictional error. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge street

Date: 27 July 2016