FEDERAL COURT OF AUSTRALIA

Zhu v Minister for Immigration and Border Protection [2018] FCA 68

ORDERS

THE COURT ORDERS THAT

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

YATES J:

introduction

1    The first appellant applied for a Medical Treatment (Visitor) (Class UB) visa on 1 December 2015. At the time he made his application, it was necessary for him to establish that he satisfied the requirements of cl 602.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). In the first appellant’s case, this meant that, amongst other things, he had to satisfy the requirement that his application had been made within 28 days after he ceased to hold a substantive visa: Criterion 3001 in Sch 3 to the Regulations. It is not in dispute that the first appellant has not held a substantive visa since 26 February 2002. Thus, at the time he made his application, Criterion 3001 could not be met. This was fatal to his application.

2    On 2 December 2015, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused the first appellant’s application on the basis that Criterion 3001 had not been met. The first appellant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review the delegate’s decision. On 7 April 2016, the Tribunal affirmed the decision under review.

3    At [17] of its Decision Record, the Tribunal said:

17.    The applicant has not disputed that he applied for the visa the subject of this review on 1 December 2015. Accordingly, the Tribunal finds that the application was not lodged within 28 days of the relevant day and the applicant does not satisfy criterion 3001 or cl.602.213(5). While the applicant explained that he did not have the finances to get professional advice regarding the lodgement of his Medical Treatment visa application, this does not assist the applicant in meeting the prescribed timeframes for lodgement of that application as set out in Criterion 3001 of Schedule 3. For these reasons the Tribunal finds that the applicant does not satisfy cl.602.213.

The Federal circuit Court

4    On 4 May 2016, the first appellant invoked the jurisdiction of the Federal Circuit Court of Australia (the Federal Circuit Court) under s 476 of the Migration Act 1958 (Cth) and sought judicial review of the Tribunal’s decision. In doing so, the first appellant raised six grounds.

5    The first three grounds were expressed as follows:

1.    I disagree with Immigration and AAT’s decision. They did not consider that I have genuine intention to apply for medical visa onshore.

2.    They did not consider the fact that I had compelling reasons for not holding a substantive visa when I applied for subclass 602. DIBP and AAT did not give a good consideration of my situation was out of my control.

3.    DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

6    In relation to Ground 1, the primary judge found (at [12]) that the first appellant’s intention did not assist in identifying any relevant legal error by the Tribunal. Further, the first appellant’s disagreement with the Tribunal’s decision did not constitute jurisdictional error.

7    In relation to Ground 2, the primary judge found (at [13]) that the existence of compelling reasons was not relevant to the criteria that had to be established for the grant of the visa. The primary judge noted that the first appellant had acknowledged that he did not hold a substantive visa within the necessary timeframe and that the Tribunal had no discretion in relation to the application of the relevant criteria.

8    In relation to Ground 3, the primary judge found (at [14]) that, by this ground, the first appellant was merely inviting the Federal Circuit Court to engage in impermissible merits review.

9    Thus, the primary judge found that none of these grounds established any jurisdictional error on the part of the Tribunal.

10    The next three grounds of the application before the Federal Circuit Court (also numbered 1, 2 and 3) were expressed as follows:

1.    I am a Chinese citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to situation beyond my control.

2.    AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation.

3.    I think AAT and DIBP should grant my 602 visa and they should well consider my special situation.

11    In relation to these grounds, the primary judge (at [16]) found that the first appellant’s circumstances, as therein described, did not disclose any jurisdictional error in the Tribunal’s decision.

12    The primary judge therefore dismissed the application for judicial review, with costs.

The appeal

13    In the appeal to this Court, two grounds of appeal are pleaded. They are expressed as follows:

1.    My wife and I are Chinse citizen and applied for subclass 602 on shore without substantiTive visa. I did provide to DIBP, AAT and fedral court with compelling reasons

2.    AAT and federal court failed to consider my explaination and supporting documents to support my appeal which I believe there is a legal error in their process.

14    The reference to FEDRAL COURT and FEDERAL COURT are to the Federal Circuit Court.

15    The orders sought in the notice of appeal are expressed as follows:

1.    I wish the court can re-consider my subcaLss 602 application and accept my compelling reason for not holding a substantive visa at the time of the lodgement

2.    there is a legal error from DIBP and AAT for not considering the compelling reason to lodge subclass 602 onshore.

16    I observe at the outset that the notice of appeal does not identify the “compelling” reason or reasons for the first appellant not holding a substantive visa at the time he applied for a medical treatment visa. It does not appear that any such reason was advanced before the Federal Circuit Court, although the primary judge noted at [10]:

10.    From the bar table, the first applicant sought to revisit the merits in relation to the Department’s refusal to grant him a visa. The Court explained that it does not have power to revisit the merits or make fresh findings of fact. The first applicant accepted that his wife had made a separate application for a medical visa, but said that she was included in the current application as a member of the family unit.

17    Similarly, it does not appear that the first appellant advanced any such reason or reasons before the Tribunal.

18    Even so, the fact that there might have been compelling reasons why the first appellant did not hold a substantive visa at the time he applied for a medical treatment visa is neither here nor there. The question is not whether he held a substantive visa at the time he made his application, but whether he had made his application within 28 days after he ceased to hold a substantive visa. On the facts, there is no doubt that he did not. Moreover, Criterion 3001 is mandatory. At the time he made his application for a medical treatment visa, the first appellant either satisfied the requirement or he did not. If he did not, it is irrelevant that he can now provide an explanation – compelling or otherwise – for that state of affairs. Thus, Ground 1 discloses no appealable error. Further, the failure referred to in Ground 2 discloses no appealable error.

19    As to the orders sought, this Court does not have jurisdiction to re-consider the first appellant’s application for a medical treatment visa.

Conclusion and disposition

20    For the foregoing reasons, the appeal must be dismissed, with costs.

21    There are two further matters I should note. The first is this: the present appeal is brought in the name of the first appellant and his wife, the second appellant. In the proceeding below, from which the present appeal is brought, the second appellant was treated by the primary judge as having been included in the first appellant’s application for a medical treatment visa as a member of the first appellant’s family unit. It was on this basis that the primary judge refused an application by the Minister to remove the second appellant as a party to the Federal Circuit Court proceeding. There is no appeal from that refusal and no similar application has been made in this proceeding.

22    The second matter to note is this: this appeal was initially listed for hearing on 31 October 2017. On 26 October 2017, the first appellant applied for an adjournment of the hearing on the basis that, on 27 October 2017, he was to undergo coronary bypass surgery. He provided a medical certificate in support of his application. The medical certificate was not as informative as it might have been. It did not state when the first appellant would be fit to attend court. The first appellant initially submitted a medical certificate which did not state the nature of his illness, but did state that he would be unfit for usual activities from 17 October 2017 to 1 November 2017. I granted an adjournment of the hearing to 22 November 2017.

23    On 17 November 2017, the first appellant applied for an adjournment of the hearing appointed for 22 November 2017 on the basis that he had not recovered from his operation. On that basis, an adjournment was granted and the hearing of the appeal was then appointed for 18 December 2017.

24    On 11 December 2017, the first appellant applied for an adjournment of the hearing appointed for 18 December 2017. He sought an adjournment until after 7 March 2018. I was not persuaded to grant that adjournment. On 13 December 2017, the first appellant was advised through my Chambers as follows:

On the present evidence, his Honour is unpersuaded that the lengthy adjournment sought by the appellant is warranted. His Honour would only be minded to allow an adjournment of that length on the basis of an appropriate medical report specifically addressing the medical reasons why the appellant is unable to attend a short court hearing of approximately ½ hour in length.

25    Although I was not prepared to grant the adjournment sought by the first appellant, I was prepared to adjourn the hearing of the appeal to today, 5 February 2018.

26    On 8 January 2018, the first appellant applied for an adjournment of the hearing appointed for today on the same evidence he had provided on 11 December 2017. I refused that application.

27    On 27 January 2018, the first appellant again applied for an adjournment of the hearing appointed for today, once again on the same evidence he had provided on 11 December 2017. I refused that application.

28    On 1 February 2018, the first appellant again applied for an adjournment of today’s hearing, supported by a letter from his medical practitioner. The adjournment was opposed by the Minister. I refused that application.

29    On that occasion, the first appellant was informed through my Chambers as follows:

On the evidence provided, his Honour is not prepared to grant the adjournment. His Honour notes that while the appellant’s post-operative recovery was complicated by rapid atrial fibrillation, this is now controlled with medication. While the medical evidence states that the appellant’s wound pain and lethargy would make it difficult for him to attend court, his Honour is not persuaded that this alone would warrant a further significant adjournment.

30    On 2 February 2018, the first appellant continued to press for an adjournment. He was advised, however, that the position remained as previously stated and that the appeal would be heard today.

31    The first appellant has not appeared today, although his wife, the second appellant, has appeared. I invited the second appellant to address me on the notice of appeal. She submitted that, on human rights grounds, the first appellant should be granted the visa he has applied for. I informed the second appellant that this Court does not have jurisdiction to consider the first appellant’s visa application on that basis.

32    The second appellant also sought an adjournment of the hearing of the appeal because the first appellant wished to attend. I refused that application. I am confirmed in the correctness of that course on the basis of the medical evidence that has been provided, which does not persuade me that the first appellant is unable to attend court. I am also confirmed in the view that a further adjournment should not be granted in light of the fact that the first appellant simply cannot satisfy the legal criteria for the visa he has sought.

Associate:

Dated:    5 February 2018