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

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

The first appellant had not held a substantive visa since 26 February 2002 and applied for the Medical Treatment visa on 1 December 2015, well outside the 28-day period required by Criterion 3001. Because Criterion 3001 was mandatory, asserted compelling reasons or explanations could not cure non-compliance, and the alleged failure to consider them disclosed no appealable error. The Federal Court also lacked jurisdiction to re-consider the visa application on its merits. The appeal therefore had to be dismissed.

Jurisdiction
Australia
Judgment Date
05 February 2018
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Amended Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Medical Treatment Visa Application. / Federal Court Appeal; Judgment Delivered and Appeal Dismissed.
Outcome
Appeal dismissed with costs.
Legal Topics
['medical Treatment (visitor) (class Ub) Visa' 'schedule 3 Criterion 3001' 'judicial Review' 'jurisdictional Error' 'impermissible Merits Review' 'adjournment']
['migration Law' 'administrative Law'] ['medical Treatment (visitor) (class Ub) Visa' 'schedule 3 Criterion 3001' 'judicial Review' 'jurisdictional Error' 'impermissible Merits Review' 'adjournment']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Dismissing an Amended Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Medical Treatment Visa Application. / Federal Court Appeal; Judgment Delivered and Appeal Dismissed.

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in dismissing the application for judicial review of the Tribunal's decision." 'Whether asserted compelling reasons for not holding a substantive visa, and alleged failure to consider explanations and supporting documents, disclosed appealable error.' "Whether the Court could re-consider the first appellant's Medical Treatment visa application on its merits."]

Ratio Decidendi

The first appellant had not held a substantive visa since 26 February 2002 and applied for the Medical Treatment visa on 1 December 2015, well outside the 28-day period required by Criterion 3001. Because Criterion 3001 was mandatory, asserted compelling reasons or explanations could not cure non-compliance, and the alleged failure to consider them disclosed no appealable error. The Federal Court also lacked jurisdiction to re-consider the visa application on its merits. The appeal therefore had to be dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The first and second appellants pay the first respondent's costs of the appeal."]