Singh v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant is to pay the costs of the First Respondent of and incidental to the appeal fixed in the sum of $4,300. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The appellant, a national of India, came to Australia on a student visa. Thereafter, he has had a succession of student visas but the last expired on 23 May 2014. 2 Over 15 months later, on 4 September 2015, the appellant applied by his migration agent for a Medical Treatment (Onshore) (Subclass 602) visa. That application was refused by the Minister's delegate on the same day. The appellant then applied to the Administrative Appeals Tribunal (the Tribunal) but it affirmed the delegate's decision. His subsequent application to the Federal Circuit Court (the FCC) for judicial review of the Tribunal's decision also failed: Singh v Minister for Immigration and Border Protection [2016] FCCA 3061. 3 The appellant, who was unrepresented (as he was in the FCC), now appeals to this Court. There is a single unparticularised ground of appeal which states simply, "Procedural unfairness". It was not clear whether the ground of appeal was directed to proceedings in the FCC or in the Tribunal, but in either case, I took it to be a claim that the appellant had been denied procedural fairness. When asked what conduct constituted the denial of procedural unfairness, the appellant answered that he wished to get back to his studies. He attributed the denial of procedural fairness to his previous lawyer who he submitted had not represented him properly in his visa claims. 4 For the reasons which follow, I consider that the appeal fails. The appellant's application to the Tribunal was bound to fail in any event, and a review of the transcript of the hearing in the FCC indicates that the appellant was not denied procedural fairness in that Court. 5 The criteria for the grant of a Medical Treatment visa are contained in cl 602 in Sch 2 to the Migration Regulations 1994 (Cth). The appellant did not hold a substantive temporary visa at the time of his application for the Medical Treatment visa. That meant (relevantly) that, unless the appellant was medically unfit to depart Australia in the circumstances defined in cl 602.212(6)(f), he had to satisfy the Sch 3 criterion 3001. That required him to have made his application for the Medical Treatment visa within 28 days of the expiry of his Student visa on 23 May 2014. Plainly, the appellant could not satisfy that criterion. 6 Neither the Migration Act 1958 (Cth) nor the Migration Regulations permitted any extension of the 28 day period. It does not matter for present purposes whether the requirement that the application be made within 28 days is a condition of a valid application or a condition of eligibility for the Medical Treatment visa. In either case, the Tribunal was bound in the appellant's circumstances to dismiss the application for the visa. 7 In the proceedings in the FCC, the appellant attributed his omission to make his application for a Medical Treatment visa within the 28 day period to omissions by his lawyer and migration agent. It is not necessary for the Court presently to make findings about that, although there is evidence that the appellant had, until August 2015, pursued forms of review of the refusal of the Minister's delegate in May 2014 to grant a further student visa. I also note that there is some evidence that the appellant's application for a Medical Treatment visa may have been made for an ancillary, and perhaps ulterior, purpose. His migration agent informed the Department when lodging the application for the Medical Treatment visa: It has come to our attention that Mr Singh's visa status has become unlawful. As a result we will be lodging a Medical Treatment visa as a pathway to exercise Mr Singh's right to appeal at the Administrative Appeals Tribunal, and eventually, the Ministerial Intervention Unit. Once the Medical Treatment visa has been lodged, Mr Singh will require an appointment with a Compliance Officer in order to apply for a Bridging visa. The application will be sent tomorrow. Please contact me at your earliest convenience to arrange an appointment for early next week. 8 The appellant's submissions today indicated that his real concern is his inability to obtain review in respect of the non-renewal or non-grant of his application for a student visa in May 2014. His submissions in the FCC had indicated that same concern. However, the issues arising from the expiry of the appellant's student visa and the refusal of the Minister's delegate to grant a further student visa are not matters which are presently before this Court, nor could they be, having regard to the terms of s 476A of the Migration Act. 9 The Tribunal member affirmed the delegate's decision to refuse the grant of a Medical Treatment visa because the appellant did not satisfy Criterion 3001, not having made his application for the Medical Treatment visa within the prescribed 28 day period. The appellant's application to the FCC did not identify any jurisdictional error by the Tribunal in that respect, nor did his submissions to the FCC. In those circumstances, it was inevitable that the application to the FCC would fail. 10 I have obtained and reviewed the transcript of the proceedings in the FCC. That transcript does not reveal any basis upon which it could be said that the appellant had been denied procedural fairness in the FCC. 11 For these reasons, the appeal is dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.