Elafifi v Minister for Immigration

[2017] FCCA 323

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELAFIFI v MINISTER FOR IMMIGRATION [2017] FCCA 323

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of a delegate of the Minister for Immigration and Border Protection – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 48(1)

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: YOUSSEF MAHMOUD EL BAKRY ELAFIFI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3196 of 2015

Judgment of: Judge Manousaridis

Hearing date: 16 February 2017

Delivered at: Sydney

Delivered on: 16 February 2017

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondent: Ms C Saunders of DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3196 of 2015

YOUSSEF MAHMOUD EL BAKRY ELAFIFI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Rules 2001 (Cth) that the application be dismissed because the application does not raise an arguable case for the relief it seeks.  By that application, the applicant applies for judicial review of a decision of a delegate of the respondent made on 30 October 2015, that his application for an Other Family (Residence) (class BU) Carer (subclass 836) visa (Carer visa) was not a valid application because of s.48 of the Migration Act 1958 (Cth) (Act).

2. The applicant is a citizen of Egypt.  He arrived in Australia on 23 November 2007 as the holder of a Tourist (Short Stay) subclass 676 visa.  The visa was subject to condition 8503 which is often referred to as the “no further stay” condition.  By letter dated 15 March 2010, a delegate of the Minister waived condition 8503. On 8 February 2010 the applicant married and, on 1 April 2010, he applied for a Partner (Temporary) (Class UK) subclass 820 (820 visa) and Partner (Residence) (Class BS) subclass 801 visa (801 visa). 

3. A delegate of the Minister refused to grant the applicant a partner visa on 23 August 2011.  The applicant applied to the Migration Review Tribunal (First Tribunal) for review of the delegate’s decision.  And on 31 October 2013, the First Tribunal affirmed the delegate’s decision not to grant the applicant an 820 visa. The applicant then sought judicial review on 16 June 2014.  The First Tribunal’s decision was set aside by consent.

4. On 15 October 2014 a differently constituted Migration Review Tribunal (Second Tribunal) affirmed the delegate’s decision to refuse the applicant an 820 visa.  On 24 February 2015 a delegate of the Minister made a “new decision” on the applicant’s application.  In a letter sent by email to the applicant, the delegate notified the applicant of the following: 

   [T]he department has identified an error in the decision to refuse to grant you a Partner (Residence) (Class BS) Subclass 801visa made on 24 March 2010.

   …

   After careful consideration of all the information provided, a decision has again been made to refuse to grant you a Partner (Residence) (Class BS 801) (partner) visa because you do not meet the requirements specified…

5. The delegate refused to grant the applicant an 801 visa because his 820 visa application had been refused.  The applicant sought review of the delegate’s decision on 16 June 2015.  The Migration Review Tribunal (Third Tribunal) found it did not have jurisdiction to conduct a review.  The Third Tribunal’s decision indicates that the applicant’s application sought review of the 820 visa refusal.  As is recorded in the decision record, the Migration Review Tribunal had already reviewed that decision.

6. On 29 October 2015 the applicant applied for a Carer visa.  On 30 October 2015 a delegate of the Minister sent by post to the applicant a letter titled “Notification of Invalid Application for a Other Family (Residence) Class BU Carer, Subclass 836 Visa”. That letter stated that the carer visa application was not valid because it did meet s.48 of the Act. Subsection 48(1) of the Act provides as follows:

   Subsection 48(1) of the Act provides as follows:

   A non‑citizen in the migration zone who:

   (a)     does not hold a substantive visa; and

   (b)     after last entering Australia:

   (i)was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or

   (ii)held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

   may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class

7. The delegate in the letter advised the applicant that s.48 of the Act provided that he was not permitted to apply for a Carer visa because he did not hold a substantive visa and, after last entering Australia, he was refused an 801 visa and an 820 visa on 24 February 2015.

8. The applicant, who is not legally represented made submissions, before me.  Those submissions largely reflect the grounds set out in the application he filed.  I propose, therefore, to go through the grounds identified in the application and refer to submissions the applicant made that are relevant to those grounds. I will also refer to additional submissions the applicant made which do not relate to those grounds. 

9. The applicant’s application for review contains four grounds.  The first is as follows: 

   The Department of Immigration failed to accept my application and treated it as invalid.  The decision is wrong because I am applying for a carer visa for my wife … who is suffering serious medical condition and there are compelling circumstances which were not considered by the department. 

10. This ground assumes the delegate was required to considered what the applicant claims are compelling circumstances of his wife. It is not arguable, however, that the delegate was required to consider such matters. The delegate’s duty was to consider whether s.48 of the Act applied to prevent the applicant from applying for a Carer visa. It is beyond argument the delegate made no error in concluding s.48 of the Act applied to prevent the applicant from making such application. There is no issue that at the time he applied for the Carer’s visa the applicant was in the migration zone at the time he applied for the Carer visa; he did not then hold a substantive visa; and, after the applicant had last entered Australia, he had been refused a visa, other than a bridging visa. Further, it is not the case that the Carer visa – or I should say “Carer visas” – have or at their relevant time had been prescribed for the purposes of s.48 of the Act.

11. At the hearing, the applicant submitted the Department of Immigration and Border Protection (Department) cannot reject his application for a Carer visa because he is a carer for his wife.  He said she is unwell and he tendered a medical report in support of that submission.  The applicant submitted he has to help her with all her needs.  He takes her to hospital and looks after the house.  He says he cannot take his wife to Egypt because she will not receive the care in Egypt that she receives in Australia.  He says he has been living with his wife for over three years.  He also says he has been in Australia for almost 10 years.  In short, the applicant submitted there are compelling or compassionate reasons for the Minister to consider the applicant’s application for a Carer visa. 

12. These submissions certainly engender sympathy. Whether or not a person is in circumstances that attract compassion and sympathy, however, is not relevant to whether s.48 of the Act applies. It is beyond argument that compassionate or compelling circumstances are not relevant to whether section 48 of the Act applies.

13. The second ground stated in the application is as follows:

    I was given a bridging visa until 11 December 2015 and the department want me to depart Australia and the situation in Egypt is not safe, neither for myself nor my wife. 

14. That the situation in Egypt may not be safe for the applicant or his wife is a matter that was not relevant for the delegate to consider when determining whether s.48 of the Act prevented the applicant from applying for a Carer visa. The only issues the delegate was permitted to consider are those identified by s.48 of the Act; namely, whether, at the time he applied for the carer visa, the applicant was in the migration zone; whether the applicant held a substantive visa; whether, after the applicant entered Australia, he had been refused a substantive visa; and whether the visa for which the applicant applied fell within any class of visas prescribed for the purposes of s.48 of the Act.

15. Ground 2 as stated in the application, therefore, discloses no arguable case of jurisdictional error.

16. The third ground stated in the application is as follows:

    The department made my application invalid but I have strong grounds to argue the validity of my application as I have been before the court before and the department made a previous application invalid because of 8503 condition.  Then an order was made to waive the restrictive condition.

17. This ground declares the applicant has grounds for claiming the delegate’s decision is invalid and that these grounds are invalid because the Department had made a previous application invalid. This discloses no arguable ground on which it could be said the delegate made an error in concluding s.48 of the Act applied to prevent the applicant from applying for the Carer visa.

18. At the hearing the applicant referred to a matter raised in this ground, namely to the Minister having waived condition 8503. That the Minister waived condition 8503 discloses no arguable case that the delegate was incorrect in concluding that s.48 of the Act applied to the applicant’s application for a Carer visa. The waiver simply removed an impediment that then existed to the applicant’s making an application for a substantive visa while in Australia. Having applied for a visa after he arrived in Australia (and after condition 8503 had been waived), which has been refused, and the applicant’s not holding a substantive visa means that at the time he applied for a Carer visa, s.48 of the Act applied to prevent him from making a further application for a visa and, in particular, a Carer visa.

19. The fourth ground stated in the application is as follows:

    I will put further arguments when I receive copy of my documents.

20. I have already referred to the submissions the applicant made at the hearing. In addition to those submissions, I note the applicant referred to his having had discussions with an officer or officers of the Department in which he was advised to apply for a Carer visa. Whether or not the applicant had such discussions and, as he claims, was advised to apply for a Carer visa, raises no arguable case of jurisdictional error. It is beyond argument that any advice given by the Department, even if it is assumed it was misleading, is not relevant to the operation of s.48 of the Act.

21. The applicant also referred to his having paid fees for his application for a Carer visa. Again, it is not arguable that his, having done so is capable of effecting the application of s.48 of the Act.

22. I am satisfied, therefore, the application raises no arguable case for the relief it seeks, and I propose to order that the application be dismissed. 

23. Before I make any order, however, I should note that at the beginning of the hearing, when I explained to the applicant the purpose of the hearing before me, I failed to mention to the applicant that what was specifically before me was an application for an order that the application be dismissed on the ground that the application disclosed no arguable case for the relief that it seeks.  I corrected that omission, however, by informing the applicant what the nature of the issue before me was after the Minister completed his submissions. I informed the applicant that the question I had to determine today was whether his application disclosed no arguable case for the relief it seeks. 

24. In my opinion, my not having informed the applicant of the nature of the application until the end of the Minister’s submissions cannot reasonably be regarded as having prejudiced the applicant.  The question I have considered, as should be apparent from the reasons I have so far given, is whether the application discloses an arguable case for the relief it seeks.  For the reasons I have given, I am satisfied the application does not disclose an arguable case for the relief it seeks and, as I have already said, I propose to order that the application be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 24 February 2017