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

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

Each appellant applied for a medical treatment visa more than three years after the last substantive visa had expired, rather than within the 28 days required by Sch 3 item 3001 of the Migration Regulations 1994 (Cth). Because item 3001 was a mandatory criterion and the Tribunal had no discretion to waive or extend it, the visas could not be granted. Any factual error, legal error, or infelicity in the Tribunal's reasons could not have affected the outcome and did not amount to jurisdictional error.

Jurisdiction
Australia
Judgment Date
12 November 2018
Procedural Posture
Migration Appeal Concerning Refusal of Subclass 602 (medical Treatment) Visas / Appeals to the Full Court of the Federal Court From Federal Circuit Court Decisions Dismissing Applications for Constitutional Writ Relief Against Administrative Appeals Tribunal Decisions
Outcome
Both appeals dismissed with costs payable to the first respondent.
Legal Topics
['medical Treatment Visa' 'subclass 602 Visa Criteria' 'schedule 3 Criterion 3001' 'jurisdictional Error' 'procedural Fairness' 'materiality of Error' 'mandatory Visa Criteria']
['migration Law' 'administrative Law'] ['medical Treatment Visa' 'subclass 602 Visa Criteria' 'schedule 3 Criterion 3001' 'jurisdictional Error' 'procedural Fairness' 'materiality of Error' 'mandatory Visa Criteria']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of Subclass 602 (medical Treatment) Visas / Appeals to the Full Court of the Federal Court From Federal Circuit Court Decisions Dismissing Applications for Constitutional Writ Relief Against Administrative Appeals Tribunal Decisions

Legal Issues

  1. 1 ['Whether the appellants could satisfy Sch 3 item 3001 of the Migration Regulations 1994 (Cth) when their medical treatment visa applications were lodged more than 28 days after the last day on which they held substantive visas.' "Whether any errors or infelicities in the Tribunal's reasons amounted to jurisdictional error when the mandatory visa criterion could not be met." 'Whether the Tribunal denied procedural fairness to Ms Zhao by listing her hearing with others and deciding the review on the papers after she declined to attend.' "Whether Mr Ahmad's medical evidence, medical condition, or alleged misconstruction of cl 602.212(6) affected the mandatory requirement in item 3001."]

Ratio Decidendi

Each appellant applied for a medical treatment visa more than three years after the last substantive visa had expired, rather than within the 28 days required by Sch 3 item 3001 of the Migration Regulations 1994 (Cth). Because item 3001 was a mandatory criterion and the Tribunal had no discretion to waive or extend it, the visas could not be granted. Any factual error, legal error, or infelicity in the Tribunal's reasons could not have affected the outcome and did not amount to jurisdictional error.

Court Disposition

Both appeals dismissed with costs payable to the first respondent.

Orders

  • ['In NSD 703 of 2018, the appeal be dismissed.' "In NSD 703 of 2018, the appellant pay the first respondent's costs." 'In NSD 1046 of 2018, the appeal be dismissed.' "In NSD 1046 of 2018, the appellant pay the first respondent's costs."]