Weng v Minister for Immigration and Border Protection

1. The application 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 for leave to appeal from the judgment and orders of the primary judge delivered on 2 June 2017. The primary judge dismissed an application to review a decision of the Administrative Appeals Tribunal (the 'AAT') dated 6 April 2016. The applicant is a male citizen of China born on 26 June 1990, and he applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa on 25 November 2015. The application was refused by a delegate of the first respondent (the 'delegate') on 26 November 2015 on the following basis. Clause 602.213 of Sch 2 of the Migration Regulations 1994 (Cth) (the 'Regulations') and criterion 3001 of Sch 3 of the Regulations required the application to be validly made within 28 days after the day when the applicant's last substantive visa ceased to be in effect. 2 The delegate noted that Departmental records indicated the applicant's last substantive visa ceased on 16 September 2010. The delegate therefore found that the applicant did not hold a substantive temporary visa at the relevant time and did not meet cll 602.213(1) and 602.213(2). The delegate found that the applicant's Medical Treatment visa application was received on 25 November 2015, more than 28 days after the last substantive visa held by the applicant had ceased on 16 September 2010. 3 The applicant applied to the AAT to review the delegate's decision on 8 December 2015. The AAT handed down its decision affirming the delegate's decision on the same day. The AAT identified the relevant issue was whether the applicant met the requirements of cl 602.213 of the Regulations. Having considered the findings of the delegate, the AAT affirmed the delegate's decision. 4 By application filed on 4 May 2016, the applicant sought judicial review of the decision of the AAT dated 6 April 2016. The Federal Circuit Court dismissed the application. The Federal Circuit Court effectively looked at six grounds raised by the applicant, but the essential point was the application to the applicant of the Regulations. 5 The application seeking leave to appeal from the judgment of the Federal Circuit Court was filed on 16 June 2017. It set out the following grounds: 1. I am a Chinse citizen and applied for subclass 602 on shore without substantive visa. I did provide DIBP, AAT and Federal Court with compelling reasons 2. AAT and Federal Court did not well consider my special for not holding a substantive visa at the time of lodging subclass 602 due to my protection visa application was failed, however I still have strong fears to leave Australia to lodge 602 visa offshore. 3. AAT and Federal Court failed to consider my explanation and supporting documents to support my appeal which I believe it is a legal error. 6 Additionally, the applicant raised the following grounds under the heading "Orders Sought" in the draft notice of appeal filed with the application: 1. I wish the Court can re-consider my subclass 602 application and accept my compelling reason for not holding a substantive visa at the time of lodgement 2. There is a legal error from DIBP and AAT for not considering the compelling reason to lodge subclass 602 onshore. 7 The applicant requires leave to appeal because the Federal Circuit Court's ruling was interlocutory. I do not need to delay on considering the various discretionary matters that go to whether leave should be granted, because I have come to the clear view that the decision of the Federal Circuit Court was correct. 8 A useful analysis of the operation of the Regulations relevant to this proceeding was made by Perram J in Sayadi v The Minister for Immigration and Border Protection [2015] FCA 1235 ('Sayadi'). In that case, his Honour set 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. 9 The application of the approach set out by Perram J and applicable to this case demonstrates the correctness of the decision of the Federal Circuit Court. I also note that 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. 10 Similarly, the AAT, the Federal Circuit Court, and, for that matter, this Court, have no discretion to waive the criterion found in the Regulations that applies to this applicant. Once the Regulations are properly interpreted and applied to the applicant, the applicant's reasons, whether compelling or not, for which he did not hold a substantive visa at the time of lodging his medical treatment visa application, are irrelevant. 11 The facts as found by the delegate and the Tribunal lead inevitably to the conclusion reached in the earlier decisions. For the sake of completeness, I should indicate that the risk or risks the applicant may face upon return to China are irrelevant in respect of this application, for the similar reasons I have indicated that compassionate grounds are irrelevant. 12 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. 13 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. 14 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. 15 For the above reasons, the application for leave to appeal is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.