Kaur v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to 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 This is an application by the applicant seeking an extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 15 May 2017 in Kaur v Minister for Immigration and Border Protection [2017] FCCA 982. The Federal Circuit Court dismissed with costs an application made pursuant to s 476 of the Migration Act 1958 (Cth) and filed on 17 November 2016. The application sought judicial review of a decision of the second respondent (the 'Tribunal') dated 8 November 2016, which affirmed a decision of the delegate of the first respondent (the 'delegate') to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (the 'visa'). Since this is an application for an extension of time, discretionary considerations apply, to which I will return. 2 The applicant applied for the visa on 20 May 2016. At the time of the application, the applicant held a Bridging visa issued on 1 March 2016. On 24 May 2016, the delegate refused to grant the visa as the applicant did not satisfy cl 602.213(5) of Sch 2 of the Migration Regulations 1994 (Cth) (the 'Regulations'). That clause required the applicant to satisfy the criteria in Sch 3 of the Regulations. The delegate found that the applicant did not satisfy criterion 3001 in Sch 3 as she had not applied for the Subclass 602 visa within 28 days of the date on which her last substantive visa ceased. The delegate found that the applicant's last substantive visa, a Student (Subclass 572) visa, ceased on 30 August 2010. 3 The applicant then sought review by the Tribunal. On 8 November the Tribunal affirmed the delegate's decision. The Tribunal found that as the applicant had lodged her visa application in Australia, did not hold a substantive temporary visa at the time of application, and was not medically unfit to depart Australia, she was thus required under cl 602.213(5) to satisfy each of the criteria in criteria 3001, 3003, 3004 and 3005 of Sch 3 of the Regulations. 4 Criterion 3001 required the applicant to have lodged her visa application within 28 days of the 'relevant day' (see criterion 3001(2)). The Tribunal found that the relevant day for the purposes of criterion 3001(2) was the date on which the applicant last held a substantive visa, namely 30 August 2010. As the visa application was not made until 20 May 2016, it was not made within 28 days of the relevant day. Accordingly, the applicant did not satisfy criterion 3001 and could not meet the requirements of cl 602.213. 5 On 17 November 2016, the applicant filed in the Federal Circuit Court of Australia an application seeking judicial review of the Tribunal's decision. On the hearing, the Federal Circuit Court addressed the applicant's three grounds of review. The primary judge held that the applicant's complaint, on the grounds of the application, was that the Tribunal did not consider the compassionate and compelling circumstances that the applicant had a history of miscarriages and was not in a position to travel. 6 The primary judge found that the Tribunal plainly discussed with the applicant the requirements of cl 602.213 of Sch 2 of the Regulations and, in particular, that the applicant's last substantive visa ceased on 30 August 2010. The primary judge noted that the applicant's visa application was made on 20 May 2016. The primary judge also noted that the Tribunal considered the applicant's visa status and the related requirements, and whether she met the criteria in cl 602.212(6), relating to medical unfitness to depart Australia. The primary judge noted that cl 602.212(6)(b) required the applicant to have turned 50. The primary judge held the Tribunal found that since the applicant had not turned 50, she could not meet the criterion in cl 602.212(6)(b) of Sch 2 of the Regulations. 7 The primary judge found the Tribunal's decision that the applicant did not meet the requirements for the grant of a medical treatment visa appeared to be without error. This was because the applicant's visa application was not made within 28 days of the 'relevant date'. The primary judge observed that the Tribunal did not have any discretion to grant the visa, and its findings were open to it on the evidence and material before it and for the reasons it gave. The primary judge found the applicant's complaints did not appear to identify any jurisdictional error on the part of the Tribunal and appeared to invite a merits review, which the Court could not undertake. 8 As I indicated previously, the grant of an extension of time is a discretionary one. I do not delay on going through the various matters that may be relevant to applications for an extension of time. Critically, if there is insufficient merit in an application, then the application should not be granted. In my view, it is abundantly clear that there are no merit in the application, and that the reasons given by the Tribunal and the Federal Circuit Court were correct. 9 In addition to the reasoning of the Federal Circuit Court, I refer to the decision of Perram J in Sayadi v Minister for Immigration and Border Protection (2015) FCA 1235. That case provides a useful analysis of the operation of the Regulations relevant to this proceeding by setting out the intellectual exercise required to reach the correct conclusion, at [7]-[18]: [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 The reasoning applied by his Honour in that case apply equally, by analogy, to the present case. 11 In addition, I should mention Perram J observed correctly at [19] in Sayadi 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. 12 Accordingly, the Tribunal and Court could not take into account compelling and compassionate circumstances. Rather, a decision must be based on the law and Regulations. 13 In those circumstances, the application for an extension of time and leave to appeal is dismissed. 14 For completeness, I mention one further issue relating to amendments 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. 15 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. 16 Since the appellant's application for a visa was made before 1 July 2017, these amendments do not affect the matter presently before this Court. I mention these amendments to make it quite clear that it has not been overlooked that these amendments occurred. 17 I also make mention that there was an application for an adjournment in these proceedings. In my view, there was no utility in the adjournment, or any basis for it being made. This was indicated that to the applicant prior to continuing to hear this particular application. 18 For the foregoing reasons, the order of the Court will be that the application for an extension of time and leave to appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.