ZHU v Minister for Immigration

[2017] FCCA 1496

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1496

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Medical Treatment (Visitor) (Class UB) Subclass 602 visa – where the second applicant became a party to the review application – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 476. 477A, 479.

Migration Regulations 1994 (Cth), cls.602.212, 602.213, Schedule 3.

First Applicant: QIMAO ZHU

Second Applicant: YONGQIONG LU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1088 of 2016

Judgment of: Judge Street

Hearing date: 29 June 2017

Date of Last Submission: 29 June 2017

Delivered at: Sydney

Delivered on: 29 June 2017

REPRESENTATION

The applicants appeared in person.

Solicitors for the Respondents: Mr J Palte
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1088 of 2016

QIMAO ZHU

First Applicant

YONGQIONG LU

Second 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 7 April 2016, affirming the decision of the delegate not to grant the first applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa. The application for a medical treatment visa identified the applicant’s name and other details of the first applicant. No question appears in the form as to whether the first applicant wishes to include someone as a member of the family unit. On the material before the Court, it appears that a separate application for a medical treatment visa was made by the applicant’s spouse, who has been joined in these proceedings.

2. The letter acknowledging the making of the application for a medical treatment visa was sent to the first applicant only, albeit identifying the first applicant as the primary first applicant. On 2 December 2015, a letter was sent by the delegate to the first applicant notifying the first applicant of the refusal of the application for a Medical Treatment (Visitor) (class UB) Medical Treatment (subclass 602) visa. The delegate found that the criteria for the grant of the medical treatment visa was not met by the first applicant. The decision does not identify the applicant's wife as a party to that decision. The delegate found that the application for a visa was not made within 28 days after the first applicant ceased to hold a substantive visa and that, accordingly, the first applicant did not satisfy the Criterion 3001 and did not satisfy the criteria under cl.602.213.

The Tribunal’s Decision

1. On 21 December 2015, the first applicant applied for review. In the application for review, the first applicant included his wife as an applicant for review. On 4 March 2016, the first applicant was sent a letter inviting both him and his wife to attend a hearing on 6 April 2016. On 6 April 2016, the first applicant appeared before the Tribunal, but not the second applicant, and the first applicant gave evidence and presented arguments. The Tribunal sent a notification of an adverse decision to both the first applicant and the second applicant, albeit that only the first applicant was described in the decision record.

2. The Tribunal identified the criteria for the grant of the medical treatment visa. The Tribunal identified the first applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal referred to the requirements under cl.602.212(6) and found that the first applicant did meet paragraph (a) and paragraph (b) of the cumulative requirements, but found the first applicant failed to meet the remainder of those cumulative requirements.

3. The Tribunal identified, having discussed with the applicant, whether he had a substantive visa at the time of the application. The Tribunal found that the requirements of clause 602.212(6)(c) and (d) were not met, and noted that it was not in issue that the first applicant did not hold a substantive visa and had not held a substantive visa since 26 February 2002. The Tribunal identified that, in order to meet the requirements of cl.602.213 the first applicant must meet the requirements of Schedule 3 Criteria 3001, 3003, 3004, 3005 to the regulations. The Tribunal identified that Criterion 3001 required the first applicant to hold a substantive visa within 28 days of the relevant day. The last substantive visa held by the first applicant was on 26 February 2002. The Tribunal found that the application was not lodged within the 28 days of the relevant day and that, accordingly, the first applicant did not satisfy the Criterion 3001 or cl.602.213(5).

4. The Tribunal noted that the first applicant explained that he did not have finances to get professional advice regarding the lodgement of his visa. The Tribunal found that this did not assist the first applicant in meeting the mandatory timeframes for the lodgement of the application, in accordance with Criterion 3001 of Schedule 3. The Tribunal found that the first applicant did not meet the requirements under cl.602.213 and affirmed the decision under review.

Proceedings before this Court

1. The application in this Court was one in which both the first applicant and his wife were joined as parties. On 16 June 2016, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained that this was the final hearing to determine whether the Tribunal’s decision was affected by 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 first applicant. The Court explained that, if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing. The Court explained that, if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.

3. The Court explained that it would identify the evidence and then hear submissions from the first applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. The first applicant confirmed that he understood the nature of the hearing, as explained by the Court.

4. From the bar table, the first applicant sought to revisit the merits in relation to the Department’s refusal to grant him a visa. The Court explained that it does not have power to revisit the merits or make fresh findings of fact. The first applicant accepted that his wife had made a separate application for a medical visa, but said that she was included in the current application as a member of the family unit.

Grounds of the application

1. The application discloses three paragraphs under the heading “Final orders sought by applicant/s” which are as follows:

   1. I disagree with Immigration and AATs 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

Consideration

Paragraph 1

1. In relation to Paragraph 1, the applicant’s intention does not assist in identifying any relevant legal error by the Tribunal. The disagreement with the Tribunal’s decision does not identify any jurisdictional error. Paragraph 1 fails to make out any jurisdictional error.

Paragraph 2

1. In relation to Paragraph 2, this is not a case where compelling reasons were relevant to the criteria. The first applicant acknowledged he did not hold a substantive visa within the necessary time frame under the criteria. The Tribunal had no discretion in relation to the application of that criteria. Paragraph 2 fails to make out any jurisdictional error.

Paragraph 3

1. In relation to Paragraph 3, this invites the Court to engage in impermissible merits review. No jurisdictional error is made out by Paragraph 3.

Further Grounds

1. The grounds of the application also disclose three other paragraphs 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. 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 think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

2. Those three paragraphs identify the applicant’s circumstances and do not disclose any jurisdictional error.

3. No jurisdictional error is made out by the application.

Further issues

1. The first respondent’s submissions also seek an order removing the second applicant as a party to the proceedings. Reference is made by the first respondent to the provisions of Part 5 and it was submitted that the application for review may only be made by the Minister or the applicant in a review by the relevant Tribunal. The submission was advanced pursuant to s.479(a)    that the parties to a review application on a concerned migration decision resulting from an application, referred to under s.477A, are the Minister and the first applicant in the review by the review Tribunal.

2. That submission makes an assumption of fact in relation to the content of the review application. On the face of the review application, the second application was included as a party to that review application. Whilst it may be the case that the second applicant pursued a separate application for a protection visa, I am not satisfied on the material before me that the second applicant was not entitled to be included as a member of the family unit. No submissions were advanced to the Court as to whether any such entitlement was excluded in respect of the visa in the present case.

3. In those circumstances, I am not persuaded that the second applicant was not a proper party to the proceedings, and I am not persuaded that it is appropriate to remove the second applicant as a party to the proceedings.

4. Accordingly, the application should be dismissed for want of any jurisdictional error.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 July 2017