Atta v Minister for Immigration

[2017] FCCA 2544

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTA & ANOR v MINISTER FOR IMMIGRATION [2017] FCCA 2544

Catchwords:
MIGRATION – Application for Skilled (Temporary) (Class TU) Student Guardian (subclass 580) visas – respondent was correct to hold that the applicants held no substantive visas under s.48 of the Act at the time of application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 82 476

Migration Regulations 1994, cl. 995.511 of Schedule 2

First Applicant:

Second Applicant:

MOHAMED MAGDY MAHMOUD RA ATTA

AFAF MOHAMED TAWFIK EL GINDY

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 375 of 2016

Judgment of: Judge Street

Hearing date: 20 October 2017

Date of Last Submission: 20 October 2017

Delivered at: Sydney

Delivered on: 20 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin of counsel

On a direct access basis

Counsel for the Respondent: Mr T Reilly of counsel

Solicitors for the Respondent: Mills Oakley

ORDERS

1. Grant leave to the applicant to file in Court the affidavit of the first applicant sworn 20 October 2017.

2. The application is dismissed.

3. The applicants pay the respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 375 of 2016

MOHAMED MAGDY MAHMOUD RA ATTA

First Applicant

AFAF MOHAMED TAWFIK EL GINDY

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for Constitutional and declaratory relief in respect of a non-reviewable migration decision made by the respondent on 15 February 2016 within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (the “Act”) if jurisdictional error is established. 

2. The applicants lodged an application for Skilled (Temporary) (Class TU) Student Guardian (subclass 580) visas on 12 February 2016. As a consequence of lodging that application, the applicants were granted bridging visas.

3. On 15 February 2016, the respondent made a migration decision holding that the applications for the visas were invalid because they did not meet the requirements of s 48 of the Act. The decision identified that s 48 of the Act provides that the applicants were not permitted to apply for a Skilled (Temporary) (Class TU) Student Guardian (subclass 580) visa because the applicants did not hold a substantive visa after last entering Australia. On 21 March 2012, the first applicant was refused a protection visa. The decision identified that an invalid decision cannot be considered and that the application has not been accepted and will not be assessed against the visa criteria.

Before this Court

1. The originating application in this Court identified the following grounds in support of the relief:

   1. The Department misunderstood our application and misapplied the law by stating that our application is invalid. This is incorrect. We did not apply for a student visa rather we applied for guardians.

   2. Our two dependent children who were included originally in our application now applied for student visa and their applications were accepted and the Department had no legal standing to refuse our guardian application because our diplomatic visa was still in effect even though we previously applied for refugee.

   3. The Department ignored evidence which was included in our guardian application that our two dependent children recently lodged student visa which was accepted by the Department. The Department also ignored that our son and daughter are totally dependent on us financially, emotionally and physically. Our presence is a must to enable them to study.

   4. The Department granted us a bridging visa valid until 23 February 2016 and asked to present valid ticket. Such request is contrary to natural justice and fairness.

2. Affidavit evidence was adduced on behalf of both the applicants and the respondent. That affidavit evidence identified that the first applicant’s diplomatic post to Australia ceased in 2012. The first applicant identified taking steps to ascertain whether his visa remained on foot. The first applicant asserted that he had taken reasonable steps as a result of the information provided by the Department and was led to believe that he still had a substantive visa.

Refusal of leave to cross-examine

1. I am not satisfied in the circumstances of this case that it is appropriate to grant leave for cross-examination in relation to the issues identified by Mr Godwin, as those arguments can be made on the material that is before the Court. The Court is of the view that it would not be assisted by the identification of the matters Mr Godwin explained by the witness Mr Gregory, and for that reason, the Court regards the cross-examination as not relevant and has refused leave.

2. The first applicant would have been well aware that his visa was a Diplomatic visa. I do not accept that there is any proper basis for the first applicant believing at the end of his diplomatic post that the visa remained in existence notwithstanding the information and inquiries that the first applicant made of the Department. 

3. Materially, s 82 of the Act relevantly provides:-

   When visas cease to be in effect

   (7)  A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

   (10)  For the purposes of subsections (5), (6) and (7), particular date includes:

   (a)  the date an event, specified in the visa, happens; or

   (b)  the date the holder ceases to have a status specified in the visa or the regulations.

4. The visa in the present case, being a Diplomatic (Temporary) (Subclass 995) visa was identified in subclass 995 of Schedule 2 in the Migration Regulations. Clause 995.511 of Schedule 2 to the Regulations provides as follows:

   Temporary visa permitting the holder:

   (a)  to travel to and enter Australia until a date specified by the Minister for the purpose; and

   (b)  to remain in Australia:

   (i)  if the visa was issued on the basis of the holder satisfying the primary criteria for the grant of the visa--for the duration of the holder's status as:

   (A)  a diplomatic or consular representative in Australia of a country other than Australia; or

   (B)  an international representative; or

   (ii)  if the visa was issued on the basis of the holder satisfying the secondary criteria for the grant of the visa--for the duration of the status of the person who satisfied the primary criteria as:

   (A)  a diplomatic or consular representative in Australia of a country other than Australia; or

   (B)  an international representative; or

   (iii)  in any case--until an earlier date specified by the Minister.

5. It follows from the provisions of the Act and cl.995.511(b)(i)(A) of Schedule 2 to the Regulations that the applicant’s Diplomatic (Temporary) (Subclass 995) visa ceased in 2012 when he ceased to hold his diplomatic posting. Accordingly, the respondent was correct to hold that the applicants held no substantive visas under s 48 of the Act at the time of application. 

6. Mr Godwin of counsel on behalf of the applicants, submitted that the applicant had taken reasonable steps to ascertain from the Department the status of his visa and argued that the first applicant reasonably believed that his diplomatic visa remained valid as a result of those inquiries. For the reasons I have already given, I do not accept that proposition but it is irrelevant in any event to the question of law that arises in relation to whether or not the substantive visa had ceased.

7. For the reasons given, it is apparent the substantive visa had ceased. No jurisdictional error is made out in relation to the decision of the respondent.

Conclusion

1. A request has been made that the Court identify that this is an appropriate matter for the Minister to consider Ministerial Intervention waiving the criteria under s 48 of the Act. That is a course that the applicant is able to seek and if the applicant does so, the merits of the matter are for the Minister to determine. 

2. For the above reasons, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017