Singh v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 The appellant appeals from orders made by the Federal Circuit Court of Australia, dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal's decision related to an application by the applicant for a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa). 2 The procedural background to the appeal is, briefly, as follows: (a) The appellant arrived in Australia in June 2009. The last day on which he held a substantive visa was 4 October 2009. (b) On 10 June 2016, the appellant applied for a medical treatment visa. (c) On 16 June 2016, a delegate of the first respondent (the Minister) refused the application. (d) The appellant applied to the Tribunal for review of the decision. (e) On 1 September 2016, the Tribunal decided that it did not have jurisdiction in the matter. (f) On 7 October 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. (g) On 7 February 2017, the Federal Circuit Court (by consent) remitted the matter to the Tribunal. (h) On 14 June 2017, a hearing took place before the Tribunal. (i) On the same day, the Tribunal decided to affirm the decision of the delegate to refuse the application for a medical treatment visa. In order to be granted a medical treatment visa, the appellant was required to satisfy (among other things) cl 602.213 of Sch 2 to the Migration Regulations 1994 (Cth). The Tribunal found that, as the appellant did not hold a substantive temporary visa at the time of application and did not meet cl 602.213(1) or 602.213(2), the appellant was required to satisfy cl 602.213(5), which required, among other things, satisfaction of cl 3001 of Sch 3 to the Regulations. In order to satisfy criterion 3001, the application for the medical treatment visa needed to be lodged within 28 days after the "relevant day". This was relevantly defined as the last day when the applicant held a substantive visa. The last day on which the appellant held a substantive visa was 4 October 2009. In circumstances where the appellant did not apply for a medical treatment visa until 10 June 2016, the Tribunal found that the appellant had not applied within 28 days of the relevant day and therefore failed to satisfy criterion 3001. (j) The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. (k) On 29 November 2017, the Federal Circuit Court dismissed the application: Singh v Minister for Immigration & Anor [2017] FCCA 2947 (the Reasons). 3 It is convenient to outline the Reasons, before turning to the appellant's grounds of appeal. 4 The primary judge summarised the procedural background to the proceeding, and then summarised the Tribunal's decision of 14 June 2017. The primary judge set out the grounds of the application at [9] of the Reasons. These were: 1. The Applicant met the key elements of the Subclass 602 (Medical Treatment) visa but the Tribunal member did not consider and therefore committed factual and legal error. 2. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application. 3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act. 5 The primary judge considered these grounds at [15]-[18] of the Reasons, rejecting each of the grounds. The primary judge considered that the Tribunal was correct to conclude that the appellant was incapable of meeting the mandatory criteria for the grant of the visa under cl 602.213 of Sch 2 to the Migration Regulations. The primary judge therefore concluded that the appellant had not established jurisdictional error by the Tribunal, and dismissed the application. 6 The appellant appeals from the orders of the Federal Circuit Court. The notice of appeal contains two grounds, as follows: 1. I meet the criteria of Subclass 602 visa but the Tribunal member dismissed my case and Hon Judge ignored the fact the Tribunal member made the judicial mistake. 2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 7 For the reasons that follow, the appeal is to be dismissed. 8 The relevant criteria for a medical treatment visa included, at the relevant time, the criteria in cl 602.213 of Sch 2 to the Migration Regulations. In the appellant's circumstances, it was necessary for him to satisfy cl 602.213(5), which required satisfaction of cl 3001 of Sch 3 to the Regulations: see generally Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235. In order to satisfy this criterion, the application for the visa needed to be made within 28 days after the last day when the appellant held a substantive visa. The appellant did not satisfy this requirement, as set out above in the summary of the Tribunal's decision. 9 The first ground of appeal does no more than restate the appellant's first ground before the primary judge, reiterating that he does meet the criteria for a medical treatment visa, the Tribunal made an error and the primary judge ignored that error. In my view, there is no error in either the primary judge's decision or the Tribunal's decision in this regard. The Tribunal's conclusions that the appellant was required to satisfy criterion 3001 and that he did not satisfy that criterion were correct, for the reasons indicated above. The primary judge was correct to so hold. 10 The second ground of appeal does not particularise any legal or factual errors contained in the decision of the Tribunal. Without such particulars, the ground is incapable of establishing any error on the part of the primary judge or the Tribunal. 11 It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the appellant pay the Minister's costs of the appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.