Chhantyal v Minister for Home Affairs
[2019] FCCA 2735
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHHANTYAL v MINISTER FOR HOME AFFAIRS | [2019] FCCA 2735 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Medical visa application – application for judicial review of a decision of a Delegate of the Minister for Home Affairs which found the applicant lodged an invalid Medical visa application – applicant was subject to Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) being no further stay condition – applicant did not apply for a waiver of Condition 8503 by the Minister for Home Affairs – no jurisdictional error in Delegate of the Minister for Home Affairs finding that Medical visa application was invalid – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.46 Migration Regulations 1994 (Cth) |
| Cases cited: Imran v Minister of Immigration and Border Protection [2018] FCA 1137 |
| Applicant: | GIRI PRASAD CHHANTYAL |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 3615 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Ms C. Juarez |
| Solicitors for the Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 11 April 2019 is dismissed.
The Applicant is to pay the Respondent’s costs of the proceeding in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 23 October 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3615 of 2018
| GIRI PRASAD CHHANTYAL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant in this proceeding is a male citizen of Nepal aged 46 years, having been born on 20 September 1972.
By Amended Application filed in this Court on 11 April 2019 he seeks to quash and have re‑determined the decision of the Delegate (Delegate) of the Respondent, the Minister for Home Affairs (Minister), dated 5 December 2018 notifying him that his application for a Medical Treatment (Class UB) (Subclass 602) visa (Medical visa) lodged on 3 December 2018 was invalid in that it did not meet s.46(1A) of the Migration Act 1958 (Cth) (the Act) because his visa previously granted on 24 January 2014, namely a Tourist (Class FA) (Subclass 600) visa (Tourist visa), was subject to Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) which is known as the no further stay condition, and the Applicant had not applied to the Minister for a waiver of that condition.
The Grounds of the Amended Application are as follows:
1. The Department of Home Affairs in Brisbane treated my application invalid because of condition 8503 No further stay which I was not aware of.
2. Due to my medical condition especially my depression, I submitted an Application for Medical treatment visa and I expected the same Department in Brisbane to waive the 8503 condition and allow me to have a valid application.
3. The Department accepted the payment of the application fee which was not refunded yet and I am of the opinion that the Department deprived me of natural justice by failing to request a waiver of 8503 condition before making a decision on my application as invalid.
4. I recall stating in my application that I suffer depression and such is a serious matter which I would have expected the Department to consider my application as valid because I am currently unfit to travel.
Background
There is a paucity of documents in this case, but the Minister has proved by a business record comprised of a screenshot that the Applicant had, on 24 January 2014 been granted a Tourist visa which was subject to Condition 8503, which states:
The 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.
In the case of Imran v Minister of Immigration and Border Protection [2018] FCA 1137 (Imran) at [6] – [10], Banks-Smith J in the Federal Court of Australia considered the statutory and regulatory provisions relevant to the application of Condition 8503, as follows:
[6] Condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) states:
The 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.
[7] The source of the authority to impose that condition is s 41 of the Act, which relevantly provides:
Conditions on visa
(1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about conditions
(2)Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(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; or
…
(2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
[8] The prescribed circumstances for the purposes of s 41(2A) are contained in r 2.05(4) of the Regulations which relevantly provides as follows:
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.
[9] Section 46(1A) of the Act provides:
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.
[10] Section 47 provides:
(1)The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)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.
The Minister has further established to my satisfaction through the affidavit of Mr Julian Pinder affirmed on 13 September 2019 that because the Delegate found that the Medical visa application was invalid, none of the documents received by the Department in relation to that application were kept by the Department, but rather were returned to the Applicant by registered post in accordance with the Department’s standard procedure.
Accordingly the Minister has been unable to produce the Applicant’s Medical visa application form and it does not appear in the Court Book. All that the Minister can produce is in the Court Book, being only the actual Decision Record of the Delegate.
The Delegate stated in his Decision Record that the Applicant did not apply for waiver of Condition 8503 in his Medical visa application. The Applicant himself from the Bar table asserted that he had not received back the Medical visa application form from the Department and he did not have a copy of it. Accordingly I am not able for myself to read and consider the Medical visa application form. However, he concedes from the Bar table that, consistent with his assertion that he did not know about Condition 8503 having been imposed on his Tourist visa, that he did not apply for waiver of Condition 8503. His concession in that respect is further consistent with his Written Submission handed up in Court at the hearing which asserts that he was not aware of Condition 8503 and admits:
Until now I have not put forward a request to waive 8503 condition because I am waiting for the Court to determine whether my application is valid or invalid.
Accordingly, it is common ground that the Applicant did not ask for a waiver of Condition 8503. His assertion that he did not know of the imposition of Condition 8503 is not in itself particularly plausible but even if so, irrelevant to the claim of jurisdictional error. There was no obligation on the Delegate to inform the Applicant of the imposition of Condition 8503 on his Tourist visa, as Banks‑Smith J in Imran at [21] also stated:
[21] In any event, the Minister or his delegate is not obliged to inform the applicant of the presence of the condition on his visa or of the possibility that the applicant could apply to have the condition waived: SZNZP v Minister for Immigration and Border Protection [2018] FCA 158 at [13]; Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [13] – [14].
In my view the Minister has established that the Tourist visa held by the Applicant was subject to Condition 8503 and I am of the opinion that in the absence of any request for a waiver the Delegate was bound to come to the decision expressed in the notification of 5 December 2018 and this means that none of the four Grounds asserted by the Applicant in his Amended Application are made out.
Conclusion
The Applicant has failed to establish that the decision of the Delegate is affected by jurisdictional error and accordingly the Amended Application filed in this Court is to be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 September 2019
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