Hallak v Minister for Home Affairs
[2019] FCA 911
•23 May 2019
FEDERAL COURT OF AUSTRALIA
Hallak v Minister for Home Affairs [2019] FCA 911
Appeal from: Hallak v Minister For Home Affairs & Anor [2018] FCCA 3188 File number: NSD 2113 of 2018 Judge: NICHOLAS J Date of judgment: 23 May 2019 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 602.212(6), 602.213 and 3001, 3003, 3004 and 3005
Cases cited: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Date of hearing: 23 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 2113 of 2018 BETWEEN: BILAL EL HALLAK
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
23 MAY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)
NICHOLAS J:
Before me is an application for leave to appeal against a decision of the Federal Circuit Court of Australia delivered on 5 November 2018, dismissing, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the applicant’s application for judicial review of a decision of the second respondent made on 18 April 2018. Rule 44.12(2) of the Rules provides that a dismissal under r 44.12(1)(a) is interlocutory in nature. Accordingly, the applicant requires leave to appeal against the judgment of 5 November 2018.
The principles that guide the determination of applications for leave to appeal were considered by the Full Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238. Generally speaking, leave to appeal may be granted:
·where the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and
·substantial injustice would result if leave were refused, supposing the decision to be wrong.
The authorities show the prospects of the applicant’s proposed appeal may be an important factor in determining whether or not to grant leave to appeal, and leave will not usually be granted if the proposed appeal has no reasonable prospects of success.
The applicant is a male citizen of Lebanon who applied for a subclass 602 medical treatment visa on 23 June 2017. That was approximately four years after his last substantive temporary visa expired.
At the time the applicant applied for the medical treatment visa, it was a requirement for the grant of that visa that the applicant satisfy the primary criteria, including cl 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth), which relevantly stated:
602.213
(1) Subclause (2) applies if:
(a) the applicant was in Australia at the time of application; and
(b) the applicant held a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(2) The substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(3) Subclauses (4) and (5) apply if:
(a) the applicant was in Australia at the time of application; and
(b)the applicant did not hold a substantive temporary visa at that time; and
(c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.
(4) The last substantive temporary visa held by the applicant was not:
(a)a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or
(b)a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
(5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
Clause 602.212(6) of Schedule 2 provided:
Unfit to depart
(6) All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c)the applicant has applied for a permanent visa while in Australia;
(d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Criteria 3001 of Schedule 3 relevantly provided:
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
…
(c) if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully; or …
The Delegate refused to grant the applicant a medical treatment visa on the ground that he did not satisfy cl 602.213. In particular, the Delegate found that the applicant’s last substantive visa ceased on 1 July 2013, which was more than 28 days prior to the date the applicant made his application for the medical treatment visa. The delegate also found the applicant did not hold a substantive temporary visa at that time.
The Tribunal affirmed the delegate’s decision. It identified the issue in the case as whether the application had been lodged within the timeframe required by the Migration Act 1958 (Cth). It found that, in circumstances where the applicant had not turned 50, the applicant was required to meet the requirements of Schedule 3, Criteria 3001, 3003, 3004 and 3005. The Tribunal also found that it was a requirement of cl 3001 that the visa application was lodged within 28 days of the relevant day, which was relevantly defined in cl 3001(2) as the last day when the applicant held a temporary substantive visa.
The primary judge was satisfied that the application for judicial review failed to disclose an arguable case of jurisdictional error and dismissed it with costs pursuant to r 44.12.
Before me today, the applicant was given an opportunity to direct my attention to any errors upon which he wished to rely in support of his proposed appeal. He was unable to do so. My own review of the relevant material does not reveal any jurisdictional error on the part of the Tribunal or provide any reason to doubt the correctness of his Honour’s decision. In the circumstances, I am satisfied that the applicant’s proposed appeal has no prospects of success, and I propose to refuse leave to appeal on that basis. The applicant must pay the first respondent’s costs of the application.
Orders accordingly.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 13 June 2019
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