ASX15 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 The matters before the Court are appeals from the orders of the Federal Circuit Court that can be conveniently considered together, namely: ASX15 v Minister for Immigration & Anor [2017] FCCA 1581; ASW15 v Minister for Immigration & Anor [2017] FCCA 1586; ASY15 v Minister for Immigration & Anor [2017] FCCA 1585. 2 The matters concern decisions of the second respondent, the Administrative Appeals Tribunal (the 'Tribunal'), that affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants Medical Treatment (Visitor) (Class UB) visas (the 'visas'). On 12 July 2017, the Federal Circuit Court dismissed all three applications commenced before it seeking judicial review of these decisions. 3 The background to the applications and how the matters arise is as follows. The appellants are nationals of Jordan. They arrived in Australia in 2013 on tourist visas. The appellants applied for the visas on 16 May 2016. The wife was the only appellant who claimed to require medical treatment in Australia because of her depression. On 18 May 2016, a delegate refused the visas on the basis the appellants did not satisfy cl 602.213(5) of Sch 2 of the Migration Regulations 1994 (Cth) (the 'Regulations') because they did not meet criterion 3001 in Sch 3 of the Regulations. Criterion 3001 required the appellants to apply for the visas within 28 days of the last day each appellant held a substantive visa. On 15 June 2016, the Tribunal received applications for review in respect of all three decisions. On 24 October 2016, the appellants appeared at a hearing before the Tribunal. 4 On 31 October 2016, the Tribunal affirmed the decisions under review and effectively reasoned as follows. The substantive visas last held by the appellants ceased on 19 November 2013 for the wife and on 3 February 2014 for the husband and daughter. None of the appellants' last-held substantive visas were a Subclass 403 or 426 visa. As the daughter had not yet turned 50, and as the husband and wife were not medically unfit and had not provided a written statement to that effect from a Medical Officer of the Commonwealth, the appellants could not meet cl 602.212(6) of Sch 2 of the Regulations. Accordingly, the appellants were required by cl 602.213(5) to satisfy criterion 3001 of Sch 3 of the Regulations. The 'relevant day' for the purposes of criterion 3001 was, for each appellant, 28 days after they ceased to hold their last substantive visa. As the 'relevant day' was more than 28 days before the date on which the appellants lodged their applications for the visas, none of the appellants could meet criterion 3001(1). 5 The appellants appealed to the Federal Circuit Court of Australia and all pleaded the same grounds as follows: 1. The Tribunal refused my application based on being lodged while I was on bridging visa and not holder of substantive visa. 2. The Tribunal overlooked the compelling and compassionate circumstances and failed to consider our application on its merits and simply because the regulations require a substantive visa. I do believe that the decision is a denial of fairness and natural justice because the law deprives me of the right to lodge an application under current circumstances. 6 As I have said, on 12 July 2017, the Federal Circuit Court dismissed the applications for review. The Federal Circuit Court concluded that it was not open to the delegate or the Tribunal to take into account any compelling or compassionate circumstances, as they had no power to do so. 7 Before me, each notice of appeal raises the ground as follows: His Honour failed to take into account our compelling circumstances and most importantly his judgment was delivered on 12 July 2017 and the First Respondent as well as His Honour ignored changes in the Migration Act which clearly states that from 1 July 2017 medical treatment visa 602 has new important changes, especially removal of Schedule 3 criteria, for applicants without a substantive visa with genuine medical condition. Such was overlooked by His Honour as well as by the Department. 8 Before going to the amendments referred to in this ground, it is abundantly clear, by reference to the interpretation of the Regulations, that the decision of the Federal Circuit Court was correct. Whilst the relevant aspects of the Regulations are not without their complexity, a careful reading of them makes it clear that the visas in question in these proceedings can only be issued by reference to the 28 day period referred to by the Federal Circuit Court. 9 A useful analysis of the operation of the Regulations relevant to this proceeding was made by Perram J in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235. His Honour set out the intellectual exercise required to reach the correct conclusion at [7]-[18], which, by analogy, is applicable to the matters presently before the Court: [7] For present purposes, Mr Sayadi's medical conditions are not only relevant to the course of the proceeding in the Court below but also to the substantive questions before that Court and this Court. This is because on 13 January 2015 Mr Sayadi applied for a visa known as a 'Medical Treatment (Visitor) (Class UB) visa'. If it had been granted, it would have permitted him to stay within the Commonwealth to pursue medical treatment here. In his application he nominated the treatment he wished to pursue here as the administration of Valium and Zoloft for his anxiety, depression and insomnia. He attached to his application one medical certificate certifying him unfit for work between 15 and 22 December 2014, a period of one week which had expired well before he made the application. [8] The question of whether one thinks this was a plausible application for a medical treatment visa does not arise. This is because, by law, subject to certain immaterial exceptions, such a visa can only be issued to a person on a bridging visa if the application for it is lodged within 28 days of the date upon which the applicant's last substantive visa was in effect. [9] This flows from the requirement that an application for a visa meet the eligibility criteria for it: s 65(1)(a)(ii) Migration Act 1958 (Cth). There are criteria for a Medical Treatment (Visitor) (Class UB) visa specified in the Migration Regulations 1994 (Cth). They are contained in Sch 2. … … [10] This provision [cl 602.213 in Sch 2 of the Migration Regulations 1994 (Cth)], if read as if it were a clause of a regulation, appears to say nothing. Subclauses (1) and (3) specify the circumstances in which subcll (2), (4) and (5) will apply. But subcll (2), (4) and (5) do not appear to specify any rule of which it is meaningful to say, as subcll (1) and (3) do, that they 'apply'. [11] This problem is removed, or at least adequately contained, by observing that cl 602.213 is not a rule at all but merely the specification of particular eligibility criteria of the kind referred to in s 65(1)(a)(ii). What it means is that the criteria in subcl (2) will be the relevant criteria if subcl (1) is satisfied and those in subcll (4) and (5) will be the relevant criteria if subcl (3) is enlivened. [12] Which criteria apply? The subcl (2) criteria do not apply. This is because subcl (1)(b) is not satisfied as Mr Sayadi did not hold a substantive temporary visa at the time he made the visa application. The next question is whether the criteria in subclauses (4) and (5) applied. The answer to that question is 'yes' because subclause (3) is satisfied in this case: Mr Sayadi was in Australia, he did not hold a substantive temporary visa and the requirements of cl 602.212(6) were not met. [13] Why were the requirements of cl 602.212(6) not met? Ms Francois of counsel, for the Minister, was good enough to take me to cl 602.212(6). … … [14] Mr Sayadi does not satisfy this as he has not turned 50 (i.e. (b)). This renders it unnecessary to consider any of the other requirements of this subclause. [15] One sees, therefore, that subcll (4) and (5) are criteria which Mr Sayadi was required to satisfy if he was to be eligible for the visa. He satisfies subcl (4) because he was never issued with either of the visas mentioned there. The difficulty is that he does not satisfy criteria 3001 in Sch 3 and hence cannot meet the criteria in cl 602.213(5). To see why this is so it is necessary to examine criteria 3001 itself. … … [16] Subclauses (2)(a), (2)(b) and (2)(d) do not apply. But subcl (2)(c) does because Mr Sayadi ceased to hold a substantive visa after 1 September 1994 (i.e. (2)(c)(i)). Consequently, the effect of criteria 3001(2) is that relevant day in relation to Mr Sayadi is the last day he held his student visa which was 21 September 2013: subcl (2)(c)(iii). [17] The upshot of these Byzantine rules is that one of the criteria he needed to satisfy in order to be eligible for the visa was that his application for the visa be lodged within 28 days of 21 September 2013. [18] Any application by Mr Sayadi for the medical treatment visa had, therefore, to be made by 21 October 2013 and if it was not then he was simply not eligible for the visa. Since he applied for the visa on 13 January 2015, he was not eligible for it and the Minister was bound to refuse his application, without the exercise of any discretion. 10 I mention also that Perram J reiterated at [19] that the Tribunal and the Court cannot take into account compassionate circumstances: [19] A delegate of the Minister refused his application on 15 January 2015. This was inevitably affirmed by the Migration Review Tribunal (as it then was) ('the Tribunal'). The Court below was therefore correct to conclude that Mr Sayadi's application for judicial review against the Tribunal could not succeed. It is true that Mr Sayadi submitted in the Court below that the Tribunal had failed to take into account his compassionate circumstances. However, the Tribunal did not have, for the reasons I have just given, any power to do so and cannot have erred in not doing so. Likewise, whilst the Court below was informed by Mr Sayadi of the alleged incompetence of his migration agent (which apparently related to the manner in which his temporary graduate visa had been handled) this fact, even if accepted, could not transform Mr Sayadi into a person who was eligible for the visa: cf. in a slightly different context Awon v Minister for Immigration and Border Protection [2015] FCA 846 at [38] to [40] per Beach J. The Court below's conclusions about this were unavoidable. 11 I now turn to the issue raised regarding changes to the Regulations by the Migration Legislation Amendment (2017 Measure No 3) Regulations 2017 (Cth) (the 'Amending Regulations'). In particular, cl 602.213 of Sch 2 of the Regulations was amended on 1 July 2017 by way of repealing cl 602.213(5), namely, the requirement that a visa applicant satisfies criterion 3001 of Sch 3 of the Regulations. 12 The amendments made by the Amending Regulations only affect an application for a visa made on or after 1 July 2017. This is made clear by the transitional provision, which provides in relevant part: 6503 Operation of Schedule 3 The amendments of these Regulations made by Schedule 3 to the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 apply in relation to an application for a Medical Treatment (Visitor) (Class UB) visa made on or after 1 July 2017. 13 Since the appellants' applications for a visa were made before 1 July 2017, these amendments do not affect the matters presently before this Court. 14 For the foregoing reasons, the Federal Circuit Court had and this Court has no option other than to dismiss the applications and the appeals. Accordingly, the Court will order that the appeals be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.