SZUOU v Minister for Immigration and Border Protection [2017] FCA 1410

SZUOU v Minister for Immigration and Border Protection [2017] FCA 1410

The appellant's last substantive visa expired on 28 July 2010 and his subclass 602 visa application was made on 9 September 2015, well outside the 28 day period required by criterion 3001 in Sch 3 of the Migration Regulations 1994 (Cth). Because the applicable Regulations left no discretion to consider compelling or compassionate circumstances, depression, or circumstances beyond the appellant's control, and because the 2017 amendments did not apply to applications made before 1 July 2017, the Tribunal and Federal Circuit Court were correct and no jurisdictional error was shown.

Jurisdiction
Australia
Judgment Date
22 November 2017
Procedural Posture
Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Subclass 602 Visa / Federal Court Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['subclass 602 Medical Treatment (visitor) Visa' 'schedule 3 Criterion 3001' '28 Day Requirement After Last Substantive Visa' 'jurisdictional Error' 'compelling and Compassionate Circumstances' 'transitional Application of Amending Regulations']
['migration Law' 'administrative Law'] ['subclass 602 Medical Treatment (visitor) Visa' 'schedule 3 Criterion 3001' '28 Day Requirement After Last Substantive Visa' 'jurisdictional Error' 'compelling and Compassionate Circumstances' 'transitional Application of Amending Regulations']

Case Brief

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Procedural Posture

Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Subclass 602 Visa / Federal Court Appeal

Legal Issues

  1. 1 ["Whether the Tribunal erred in affirming refusal of the appellant's subclass 602 visa because the application was not made within 28 days after the last substantive visa ceased." "Whether the Tribunal or the Court could take into account compelling and compassionate circumstances, depression, or circumstances beyond the appellant's control." "Whether amendments made by the Migration Legislation Amendment (2017 Measure No 3) Regulations 2017 (Cth) affected the appellant's visa application made before 1 July 2017."]

Ratio Decidendi

The appellant's last substantive visa expired on 28 July 2010 and his subclass 602 visa application was made on 9 September 2015, well outside the 28 day period required by criterion 3001 in Sch 3 of the Migration Regulations 1994 (Cth). Because the applicable Regulations left no discretion to consider compelling or compassionate circumstances, depression, or circumstances beyond the appellant's control, and because the 2017 amendments did not apply to applications made before 1 July 2017, the Tribunal and Federal Circuit Court were correct and no jurisdictional error was shown.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']