Cheikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 79
•15 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cheikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 79
File number(s): SYG 222 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 15 February 2022 Catchwords: MIGRATION – Medical Treatment Visa – existing No Further Stay condition – whether Minister ignored medical evidence contrary to Medical Treatment visa – whether the Delegate failed to consider relevant compelling and exceptional circumstances – whether Minister made decision affected by jurisdictional error – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 41, 46
Migration Regulations 1994 (Cth) reg 2.05
Cases cited: Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648
SZNZP v Minister for Immigration and Border Protection [2018] FCA 158
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 10 February 2022 Date of hearing: 10 February 2022 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Applicant: Ms Garaty appeared for the Respondent ORDERS
SYG 222 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OMAR EL CHIEKH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
15 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The application is dismissed.
3.The Applicant is to pay the Respondent’s costs fixed in the sum of $6300.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION AND BACKGROND
The applicant is a male citizen of Lebanon. The applicant last arrived in Australia on 28 November 2012, having been granted a Short Stay Sponsored (“Visitor”) (“class UL”) visa on 9 November 2012. That visa was subject to a number of conditions, including conditions 8101 (no work); 8201 (maximum three months study); 8503 (no further stay); and 8531 (must leave before visa expiry). The Visitor visa cease date was 9 February 2013.
On 8 December 2015, the Department for Immigration received a “No further stay waiver request” from the applicant. The applicant sought a waiver of this condition so that he could lodge an application for a Carer visa in order to care for his aunt. Various medical documents were attached to the application. The delegate for the Minister for Immigration (“the Delegate”) also received from the Minister’s department a submission dated 14 November 2015. This submission recorded further background, including that the applicant lodged an application for Protection visa based on sexual orientation claims on 19 December 2012. This was refused on 15 August 2013. The applicant pursued various merits and judicial review processes with an application to the then Federal Circuit Court that was dismissed on 14 October 2015.
The respondent acknowledges that the Departmental submission appears to contain some typographical errors in respect of the date of grant of the Visitor visa and expiry date of that visa. These dates are not consistent with those listed on the Visa Grant Notice.
The delegate decided not to waive the no further stay condition on 15 December 2015. The applicant then sought a Medical Treatment (Subclass 602) visa. A delegate of the Minister for Immigration (“the delegate”) determined that the Medical Treatment visa was invalid due to the existence of the “No Further Stay ‘condition that had not been previously waived.
The Applicant now seeks judicial review of the delegate’s decision in relation to the latest visa application.
THE DELEGATE’S DECISION
The refusal letter outlined that the delegate had to consider the application of s 41(2A) of the Migration Act 1958 (Cth) (“the Act”) and reg 2.05 (4) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate accepted that the applicant’s preference was to remain in Australia with his girlfriend, but did not accept that this was a change in circumstances outside his control.
In relation to a previous Carers visa application, that related to the applicant’s aunt, the delegate found no further information had been presented to indicate his aunt was unable to receive sufficient care in Australia and found that no information had been presented to indicate that the applicant had undergone a major change in circumstance which had developed since his original Visitor’s visa was granted and that was outside his control.
That decision was contained in a delegate’s letter dated 16 December 2015. Records from the Department indicate that the refusal letter was returned to sender as unclaimed on 16 February 2015.
The Affidavit in support of the applicant’s application to the Court attaches a letter from the Department dated 17 January 2019. This indicates that the applicant applied for Medical Treatment (subclass 602) visa on 14 January 2019. This related to medical issues claimed by the applicant. The letter advises that the application for the visa was invalid because it did not meet s 46 (1A) of the Act as, since he had last entered Australia, the applicant held a Visa subject to condition 8503 “No further stay”.
GROUNDS OF JUDICIAL REVIEW
The applicant’s initial grounds of judicial review are contained in an Originating Application filed on 5 February 2019. They are as follows verbatim:
1. The Delegate of the Minister, position no 60016400 indicates that he is from Brisbane Client Services which is the same Department which deals with No further stay condition. The Department had a previous request for condition 8503 and the Department considered my application as invalid for medical treatment visa without taking into account that I applied for No further stay removal condition previously.
2. The Delegate of the Minister ignored evidence of intended medical treatment (form 1507) and any medical evidence and prescription evidence provided by my Doctor, Aiman Al Sayed, of AZ Medical centre of 96 Haldon Street Lakemba.
3. The delegate of the Minister ignored the medical evidence which is contrary to the application for medical treatment visa.
4. I request that even though my visa is subject to condition 8503 the Department failed to consider the waiver of the condition and this is an error
5. Condition 8503 is set out in s.41(2)(a) of the Migration Act and the Delegate failed to see the relevancy of compelling and exceptional circumstances. The delegate failed to exercise the discretion in s.41(2)(a) of the Act and therefore the decision is affected by jurisdictional error .
In an amended application filed on 31 July 2019 the applicant raises additional grounds as set out below:
1.I continue to rely on my application under migration act submitted in court on 5/2/2019.
2.In addition I am now married to Sabrine El Cheikh. We were declared husband and wife on 27 January 2019. My wife is now pregnant and expecting our baby on or about 18/3/2020.
3.I understand that the matter is stood over for a call over on 26 June 2020 at 10.00am. I continue to believe that the Department failed to give me the opportunity to apply to have 8503 condition waived before considering my medical treatment application is invalid.
4.I suffer major depression and the Department failed to record me natural justice. Please see medical evidence attached (Note no documents are attached to the amended application)
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Arabic interpreter. Prior to the hearing commencing, the Court ensured that a copy of the respondent’s written submissions were interpreted to the applicant and that he was in possession of a copy of the relevant Court books.
At the commencement of the hearing, the Court explained the difference between judicial review and merits review and that the Court could only undertake judicial review.
The Court also explained the process by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was filed in support of the application by the applicant.
The applicant told the Court that he came from a war torn country. The applicant came to Australia as it was a better country. Since then, the applicant has been trying to get on the right path, but no one has been able to advise the applicant of a way through his difficulties as regards the no further stay condition.
The applicant outlined that he was now married to an Australian citizen. The applicant was the father of a child with his wife. The applicant’s wife was now pregnant with their second child.
The applicant was reminded that the role of the Court was only to determine if there was a legal error in the delegate’s decision. The Court could not consider the merits of the matter or make any determination in relation to the no further stay condition. The Court was limited to considering if the decision of the delegate to refuse the applicant’s most recent visa application as lawful.
THE RESPONDENT’S SUBMISSIONS
The respondent tendered an Affidavit, without objection, by Tobias Gregg, affirmed 8 August 2019. That Affidavit attached a copy of Departmental records in relation to the applicant which included a Notification of Refusal of Request to waive Condition 8503 letter dated 8 August 2019 forwarded to the applicant at an address in Punchbowl.
After setting out the relevant legislative provisions, the respondent noted that Grounds 1, 4 and 5 appear to allege that the Department failed to consider a waiver application made by the applicant. The respondent is not aware of any further application by the applicant to waive Condition 8503 subsequent to the one lodged in December 2015. Further, the applicant has not proffered to the Court any evidence of any application to waive condition 8503 subsequent to the one made in December 2015.
The fact that the applicant had applied for a waiver of condition 8503 is, of itself, insufficient to treat the visa application as valid. Subsection 46(1A)(c) of the Act clearly requires that a decision to must be made to waive the condition under subsection 41(2A) of the Act.
As Condition 8503 had not been waived, the delegate considering the Medical Treatment visa application subsequently made the Invalid Application decision in January 2019 and was “under an imperative obligation not to consider an application when the condition in question had not been waived”: (see; Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 at [12]) (“Vahaakolo”).
In SZNZP v Minister for Immigration and Border Protection [2018] FCA 158 at [10] Dowsett J found “it was not open to the delegate to exercise some discretion or judgement in concluding the application was invalid. The application was invalid by operation of the Act and no procedural fairness arises.”
In relation to ground five, on the basis of the current evidence before the Court, there was no new or outstanding waiver request before the delegate. The delegate was not required to consider whether condition 8503 should be waived in assessing the validity of the condition and “ (t)he fact the applicant may have impliedly requested a waiver of a clause 8503 condition at the same time as he made his visa application is beside the point”: (see; Vahaakolo at [11]).
Grounds two and three variously allege that the delegate failed to consider the medical evidence that the applicant submitted in support of his Medical Treatment visa application. For the reasons set out above, the application was invalid and the Act therefore prevented the delegate from considering it and any associated evidence. These grounds are not establish any arguable jurisdictional error.
In the applicant’s amended application, he contends somewhat contradictory to his other grounds that the Department failed to give him the opportunity to apply to have the 8503 condition waived before considering his application for the medical treatment visa.
The delegate was under no obligation, in considering the validity of the application for the Medical Treatment visa, to give the applicant the opportunity to seek a waiver of the 8503 condition. Indeed, it is clear the applicant previously sought to waive that condition and it was unsuccessful.
This matter, as well as each of the other matters contained within the amended application, fail to assist the applicant in these proceedings.
CONSIDERATION
The applicant first arrived in Australia on 28 November 2012 on a 3 month short stay sponsored visa. This visa included a number of conditions including condition 8503 being no further stay condition and condition 8531 being a must leave before visa expiry requirement. Remarkably, the applicant has been able to extend his stay in Australia for over 10 years, by the lodgement of various visa applications as well is seeking merit reviews and judicial reviews of decisions to refuse him various visas.
The current visa application relates to a decision on 17 January 2019 that an application for a Medical Treatment (subclass 602) visa was invalid. This follows on from a decision of a delegate in 2015 not to waive condition 8503, being the no further the stay condition.
The relevant legislation is as follows.
Section 41(2)(a) of the Act provides and entitles the Minister to impose:
(2)(a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia
Condition 8503, as contained within Schedule 8 of the Regulations, states that:
8503The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
At the time of the Waiver Refusal Decision, under section 41(2A) of the Act, the Minister could, in prescribed circumstances, by writing, waive a condition of a kind described in section 41(2)(a) of the Act. Those prescribed circumstances were as follows:
(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii)that resulted in a major change to the person’s circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
Subsection 46(1A) of the Act provided the requirements for a valid visa application and reads as follows:
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a)the applicant is in the migration zone; and
(b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c)the Minister has not waived that condition under subsection 41(2A); and
(d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted."
Subsection 47(3) of the Act prevented the Minister from considering an application that was not valid. Subsection 47(4) of the Act further provided that:
To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
In relation to Grounds one, four and five, the Court agrees with the submission of the respondent that there is no evidence before the Court that the applicant lodged any further application to waive condition 8503 subsequent to the one lodged in December 2015. The Court notes this was refused on 15 December 2015 and a notification was sent to the applicant. That notification, however, was returned to the Department as not being able to be delivered.
The Court is satisfied that a valid decision was made to not waive condition 8503 prior to the lodgement by the applicant of his application for a Medical Treatment visa on 14 January 2019. The Court is satisfied that the delegate had no discretion in the circumstances to determine other than that the application was invalid because at the time of the decision, there was in place condition 8503 that no further visa that would be granted. Grounds one, four and five, have no merit as the Court agrees that the application was invalid by operation of the Act. No question of procedural fairness accordingly arises.
Grounds two and three also have no merit. There was no requirement for the delegate to consider the medical evidence in circumstances where the application of itself was invalid due to the operation of clause 8503.
In terms of the material contained in the amended application ground one is merely a restatement that the applicant continues to rely upon these previous grounds. In itself it is not a ground of judicial review. Grounds two and four simply provide factual material as to the applicant’s current circumstances and are also not grounds of judicial review.
As pointed out by the respondent, ground three seems to acknowledge that at the time the medical treatment application was lodged, the applicant was aware that there was a condition 8503 bar to him being granted any further visa. The assertion that the Department was under responsibility to allow him to have the opportunity to apply to have the condition 8503 waived prior to considering the medical treatment application is entirely misconceived.
Whilst it is not a matter that the Court need come to view on, noting the requirements in regulation 2.05(4) of the Regulations, in order to the applicant to have succeeded in any application for a waiver of condition 8503 the applicant would have needed to have shown compelling and compassionate circumstances, over which he had no control and which resulted in a major change to the applicant’s personal circumstances.
In the light of the evidence in the current matter, it is very difficult to see how the material contained within the Medical Treatment visa application could have possibly grounded a successful application for condition 8503 to have been waived in the applicant’s circumstances. Ground three has no merit.
The Court notes that it may well be, given the applicant’s marriage in 2019 to an Australian citizen, the subsequent birth of his child, and the current pregnancy of his wife, the possibility of the applicant applying for a Partner visa arises. The applicant would need to make a further request for the No Further Stay Condition to be lifted as a first step.
If it is lifted, it will be a matter for the Minister as to whether that partner application can be made while the applicant remains within Australia, or whether the applicant needs to depart Australia in order to make that application. This however is a matter over which the Court has no jurisdiction.
CONCLUSION
Accordingly, the application is dismissed
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 15 February 2022
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