FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    These two appeals were listed together because they raised a common issue as to the construction of the Migration Regulations 1994 (Cth) relating to visas for medical treatment. That issue will not arise for any applications lodged after 1 July 2017 because the critical requirement, which each of the appellants did not meet, was that they had to lodge their applications within 28 days of the last day on which each had held a substantive visa under the Migration Act 1958 (Cth): see the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017, Sch 3, Subclass 602 (Medical Treatment) visas, items 3 and 4, and Sch 12, item 6503 (being the transitional provision that makes the amendment operate only for applications for medical treatment visas lodged after 1 July 2017.)

Background

2    When the appeals were called on for hearing this morning, one of the appellants, Khalil Ahmad, did not appear, and we refused what we inferred to be an application to adjourn his appeal: Ahmad v Minister for Immigration and Border Protection (No 1) [2018] FCAFC 199. We proceeded to hear that appeal together with the appeal brought by Chunhong Zhao. As will shortly appear, the form of the Regulations applicable to the grant of medical visas had changed by 16 December 2016 so that one criterion in Ms Zhao’s case was different for Mr Ahmad, but as events have happened, the amendment was immaterial to the outcome of both appeals. The circumstances of the two appeals are within a narrow compass.

Ms Zhao’s circumstances

3    Ms Zhao is a citizen of People’s Republic of China. The last substantive visa that she held was a tourist visa that expired on 8 March 2013. At the time that her application was filed on 16 August 2016, she was 47 years old. She sought the grant of a medical treatment visa so that she could remain in Australia for a further four years to receive such treatment.

4    On 7 September 2016, a delegate of the Minister made a decision under s 65(1)(b) of the Migration Act 1958 (Cth) to refuse to grant Ms Zhao the visa.

5    On 26 September 2016, she applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.

6    On 16 January 2017, the Tribunal invited Ms Zhao to a hearing on 27 February 2017 to give evidence and present argument in relation to the issues arising on the review. However, she wrote to the Tribunal declining the invitation, because she was unwell and suffering depression since her husband left Australia, and she invited the Tribunal to decide the review on the papers. Before the Federal Circuit Court and this Court she stated that she also had declined the invitation because of her perception that other people would have their matters heard by the same Tribunal at the same time.

7    On 27 February 2017 the Tribunal decided to affirm the delegate’s decision not to grant Ms Zhao the visa.

Mr Ahmad’s circumstances

8    Mr Ahmad's is a citizen of the Republic of Pakistan. At the time of his application for the visa, he was about 42 years old. He arrived in Australia on 28 March 2012. The last substantive visa that he held was a tourist visa that expired on 28 June 2012. On 6 January 2017 he applied for a medical treatment visa.

9    On 9 January 2017, another delegate of the Minister made a decision under s 65(1)(b) of the Act to refuse to grant Mr Ahmad the visa.

10    On 31 January 2017, he lodged an application for review with the Tribunal.

11    On 2 May 2017, the Tribunal invited Mr Ahmad to give evidence and present arguments at a hearing on 31 May 2017, at which he appeared.

12    On 1 June 2017, the Tribunal decided to affirm the delegate’s decision.

The legislative context

13    Relevantly, s 30 of the Act provided that a visa to remain in Australia could be either permanent, which gave the holder the right to remain indefinitely, or temporary, which gave the holder the right to remain during a specified period or until either a specified event occurred or the holder had a specified status.

14    Section 31 required that there be prescribed classes of visas, as well as other visas with which the Act dealt. A medical treatment visa is one of the prescribed classes under the Regulations. A substantive visa, as defined in s 5(1) of the Act, is a visa other than a bridging visa, a criminal justice visa or an enforcement visa. Subclass 602 in Sch 2 of the Regulations is headed “Medical Treatment”. The criteria set out in subclass 602 were criteria that had to be met at the time that a decision was made on an application for the visa. Thus, the criterion prescribed in cl 602.211 provided that the applicant sought to visit, or remain in, Australia temporarily for the purposes of medical treatment or for related purposes. Relevantly, the criteria prescribed in cll 602.212(1) and (6) and 602.213(3), (4) and (5) were:

602.212 

(1)   The requirements in one of subclauses (2) to (8) are met.

Unfit to depart

(6)   All of the following requirements are met:

(a)   the applicant is in Australia;

(b)   the applicant has turned 50;

(c)   the applicant has applied for a permanent visa while in Australia;

(d)   the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e)   the applicant has been refused the visa;

(f)   the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

602.213 

(3)   Subclauses (4) and (5) apply if:

(a)   the applicant was in Australia at the time of application; and

(b)   the applicant did not hold a substantive temporary visa at that time; and

(c)   the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(4)   The last substantive temporary visa held by the applicant was not:

(a)   a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)   a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)   The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. (emphasis added)

15    In Mr Ahmad’s case, cl 602.213 (4) was amended by 16 December 2016 and read:

The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

16    Relevantly, item 3001(1) and (2)(c) provided:

3001

(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1)…, the relevant day, in relation to an applicant, is:

...

(c) if the applicant:

(i) ceased to hold a substantive … visa on or after 1 September 1994; or

…whichever is the later of:

(iii) the last day when the applicant held a substantive … visa.

17    As noted above, the last substantive temporary visas of Mr Ahmad and Ms Zhao lapsed in 2012 and 2013 respectively. Both appellants fell within the criterion in cl 602.213(3)(c) because each was under 50 years old and so could not meet the requirements of cl 602.212(6)(b). It was common ground that neither Mr Ahmad nor Ms Zhao held a visa of the kind described in 602.213(4). Accordingly, item 3001 in Sch 3 applied to the circumstances of each of Ms Zhao and Mr Ahmad. Its effect was that for their applications to have been valid they had to have applied for a medical treatment visa within 28 days after the last day on which he or she had held a substantive visa.

18    As is clear from the recitation of the provisions and the circumstances of each of Ms Zhao and Mr Ahmad, neither could satisfy item 3001(1). It follows that they could not have met the requirements of cl 602.213(5) so as to be entitled to a grant of a medical treatment visa.

The delegate’s decisions

19    In each case, the delegate’s decision correctly identified that cl 602.213(5) had not been met because of the fact that the last substantive temporary visa each appellant had held had expired more than 28 days, indeed over three years, before his or her application was made. Both Ms Zhao and Mr Ahmad applied to the Tribunal to review the delegate’s decision.

The Tribunal’s decision in Ms Zhao’s case

20    During the course of the Tribunal’s reasons in Ms Zhao’s case, the member correctly identified the requirements of cll 602.212(6) and 602.213 and item 3001. However, in [8] of its reasons, the Tribunal said that Ms Zhao made her current application over three years after she last held a substantive visa, and continued:

Therefore the applicant does not meet cl 602.212(6), as she did not hold a substantive temporary visa at the time of application, and the last such visa held was not a subclass 403 or 426 visa.

21    That language of the Tribunal appears to have been infelicitous, but it must be read as Brennan CJ, Toohey, McHugh and Gummow JJ held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, namely:

a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker…: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (footnotes and references omitted)

22    It is clear that the Tribunal correctly understood the law and how it had to proceed. To the extent that the Tribunal made an error in the way in which it expressed itself, that error could have made no difference to its decision to affirm the decision of the delegate.

23    That was because Ms Zhao’s application did not, and could not, meet the criterion in item 3001, and for that reason, any infelicity or error in the Tribunal’s expression of its reasons quoted in [20] above was not an error that went to the exercise of its jurisdiction, as Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at 789 [35]; see also per Nettle J at 789 [41] and Edelman J at 796 [74].

Ms Zhao’s proceedings in the Federal Circuit Court

24    Both Ms Zhao and Mr Ahmad applied to the Federal Circuit Court for Constitutional writ relief against the decisions of the Tribunal. Ms Zhao argued that the Tribunal’s decision was erroneous because she had previously explained to the Tribunal her compelling circumstances and her concerns about having to appear at the same time as other persons, and that it was aware of what had happened to her husband, who had apparently been deported, causing her to suffer depression. She claimed that the Tribunal had denied her both privacy and natural justice.

25    The trial judge in Ms Zhao’s case, Judge Baird, concluded that her application should be dismissed. Her Honour found, first, that Ms Zhao had been properly invited to a hearing by the Tribunal. She had declined to attend and instead had invited the Tribunal to decide her application on the papers, so that the first ground failed. Secondly, her Honour found that Ms Zhao’s second ground did not articulate any jurisdictional or other error. Her Honour found, correctly, that there was no discretion in the delegate or the Tribunal to waive the requirements for the grant of the visa, because those requirements were mandatory, as Perram J had earlier explained in Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 at [18], making the observation at [17] that the rules were Byzantine.

Ms Zhao’s appeal

26    In her notice of appeal Ms Zhao asserted that while her Honour was very sympathetic, she still believed that the Tribunal’s decision was affected by an error of law, first, because it had listed her case with others, secondly, she did not attend the hearing before the Tribunal because she was traumatised, and thirdly, she would turn 50 next month and hoped that the Court would give her a positive outcome.

27    Ms Zhao addressed us and made submissions in which she accepted that her last substantive visa had expired on 8 March 2013. In her submissions, she explained her personal circumstances and those of her family members and the distress that the separation caused by her husband’s removal to China and the Department’s prolonged examination of her daughter’s application for a spouse visa had caused her.

28    However, she was not able to identify any error by her Honour or any jurisdictional error affecting the Tribunal’s conclusion that, because she had not applied for her medical visa within 28 days after her tourist visa had expired in March 2013, as the Regulations in their then form required, she could not meet an essential requirement for the visa application to be valid or approved. Accordingly, her appeal must fail.

The Tribunal’s decision in Mr Ahmad’s case

29    In Mr Ahmad’s case, both the delegate and the Tribunal referred to the form of cl 602.213(4) in the Regulations in their form as at the 16 December 2016. Each noted that cl 602.213 did not prevent Mr Ahmad’s application being considered, but each found that he could not meet the criterion in item 3001 because he had applied more than four years after his last substantive visa had expired.

30    In [8] of the Tribunal’s reasons in his case, it incorrectly gave the date on which his tourist visa had expired as 28 June 2016 rather than 28 June 2012. However, that typographical error was of no moment since his application in January 2017 was in any event more than six months after June 2016. As Hossain 92 ALJR 780 explained, the error in the date was not jurisdictional and had no effect on the outcome of the Tribunal’s decision. In any event, there is no error of law simply in making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

Mr Ahmad’s proceedings in the Federal Circuit Court

31    Mr Ahmad argued that the Tribunal, first, had denied him procedural fairness, by failing to give proper consideration to his medical records and evidence, secondly, had misconstrued cl 602.212(6), thirdly, should have found that he was entitled to a visa because his medical condition had deteriorated despite his application being made more than 28 days after his last substantive visa had expired and, fourthly, came to a legally unreasonably decision given his medical condition.

32    The trial judge in Mr Ahmad’s case, Judge Smith, found that each of his grounds had no basis since the medical records and Mr Ahmad’s medical condition were not relevant to whether he fulfilled the criterion in item 3001. Curiously, his Honour said that the Tribunal’s finding that Mr Ahmad had lodged his application over six months after he last held a substantive visa was “clearly wrong as was the finding that the applicant last held a substantive visa on 28 June 2016.” There was no basis to say that the first of those findings was “clearly wrong”, since it was correct, even if using the typographically wrong 2016 date as the basis for the calculation. That is because Mr Ahmad applied for the visa only on 6 January 2017. However, in the end, his Honour correctly found that Mr Ahmad’s claim failed because he had made the visa application outside the 28 day period in item 3001.

Mr Ahmad’s appeal

33    Mr Ahmad’s notice of appeal asserted that Judge Smith erred by failing to find that the Tribunal:

    had made a jurisdictional error by not considering his claim or giving sufficient weight to his medical records and evidence;

    had misapplied or misconstrued cl 602.212(6) and or item 3001 because, although he did not hold a substantive visa, he was seeking one by reason of the deterioration in his medical condition following the expiry of his last substantive visa, and

    it had made an unreasonable decision because his medical condition and supporting medical evidence showed he would have been granted a medical visa to continue his treatment in Australia.

34    None of those grounds engaged with how Mr Ahmad could possibly have fulfilled the criterion in item 3001 when his last substantive visa had expired four and a half years before he made his application. He did not provide any written submissions to the Court and, as we have noted, the Tribunal had no discretion to extend the time for making a valid application.

35    For those reasons, his appeal must also be dismissed.

Conclusion

36    Once it is appreciated that each appellant’s application for a medical treatment visa could not be granted more than three years after her or his last substantive visa had expired, rather than within the required 28 days of expiry, no other result was possible before each of the delegate, the Tribunal and the Federal Circuit Court. Any legal or factual error or infelicity of expression of the reasons given by the Tribunal in each review could not have made a difference, let alone produce a jurisdictional error. Each judicial review application therefore had to fail, and accordingly, each appeal to this Court could not succeed.

37    The appellants must pay the Minister’s costs of each appeal.

Associate:

Dated:    20 November 2018.