Imran v Minister for Immigration

[2017] FCCA 3139

FEDERAL CIRCUIT COURT OF AUSTRALIA

IMRAN v MINISTER FOR IMMIGRATION [2017] FCCA 3139

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review in relation to the rejection by the Department of Immigration and Border Protection of an application for a Medical visa on the ground that the visa the applicant had previously held was subject to a “no further stay condition” – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), s. 41, 41(2)(a), 41(2A), 46(1A)
Migration Regulations 1994 (Cth), reg. 2.05(1), 2.05(4)
Migration Regulations 1994 (Cth), Schedule 2, cl. 676.613
Migration Regulations 1994 (Cth), Schedule 8, cond. 8503

Applicant: KHAJA SIRAJUDDIN IMRAN

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2710 of 2016

Judgment of: Judge Manousaridis

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent:

Ms Z. Papagiannis of

DLA Piper Australia

ORDERS

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

2. The applicant pay the respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2710 of 2016

KHAJA SIRAJUDDIN IMRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed, because it does not raise an arguable case for the relief it claims. By that application the applicant applies for relief in relation to a decision or, perhaps more accurately, an opinion conveyed to the applicant in a letter dated 23 September 2016 from the Department of Immigration and Border Protection (Department) to the applicant. I will return to that letter in a moment.  But first some background.

2. The applicant is a citizen of India. He arrived in Australia on 3 December 2012 as the holder of a subclass 676 visitor visa (Visitor visa). The Visitor visa was subject to condition 8503.  That condition is often referred to as the “no further stay condition”. The terms of condition 8503 are set out in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), and are as follows: 

   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. 

3. On 22 September 2016 the applicant applied for a Medical Treatment (subclass 602) visa (Medical visa). On 23 September 2016 the Department issued the letter to which I have already referred. It is addressed to the applicant, and it is headed “Notification of invalid application for a medical treatment (subclass 602) visa”.  The letter states, among other things, the following: 

   Your application for a visa is invalid, because it did not meet subsection (46)(1A) of the Migration Act 1958. That provision provides that your application is invalid, as since you entered Australia you held a visa subject to condition 8503 “no further stay”. Where a visa is subject to this condition, the visa-holder may only make a valid application in Australia for certain limited classes of visas, unless the condition is waived. Invalid applications cannot be considered. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.

4. It will be seen from that letter that the writer informed the applicant that the application for the Medical visa which the applicant had lodged on 22 September 2016 was invalid because it did not meet s.46(1A) of the Migration Act 1958 (Cth) (Act). This requires me to say something about the relevant statutory provisions. 

5. The starting point is s.46(1A) of the Act, which 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.  

6. Section 41 of the Act relevantly provides:

   (1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions. 

   (2)Without limiting subjection (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.

7. Subsection (2A) of s.41 then provides as follows:

   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. Reg.2.05(1) of the Regulations provides as follows:

   For subsection (41)(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).

9. Schedule 2 to the Regulations sets out the provisions with respect to the grant of subclasses of visas, including visitor visas. Clause 676.613 of Schedule 2 to the Regulations states, among other things, that condition 8503 may be imposed. Regulation 2.05(4) of the Regulations is also relevant and sets out the circumstances in which the Minister may waive a condition of a kind described in s.41(2)(a) of the Act. It 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.

1. I then turn to the grounds of application filed by the applicant.  It contains three paragraphs.  The first paragraph is:

   The Delegate of the Minister ignored my compelling and compassionate circumstances and acted against the medical report submitted with my application.

2. This ground is unarguable, because it incorrectly assumes that the circumstances of the applicant when he applied for the medical visa were relevant to whether the application was a valid application for a visa. The effect of s.46(1A) of the Act, when considered with s.41(2)(a) of the Act and reg.2.05(1) of the Regulations, is that the applicant, having held a visa subject to condition 8503, was incapable of making a valid application for a medical visa, unless the Minister waived that condition. That is so, whether or not there were compassionate circumstances attending the applicant’s applying for the Medical visa. It is not suggested, and there is nothing to suggest that the applicant in the case before me applied for a waiver of condition 8503.

3. The second paragraph stated in the grounds of application is as follows: 

   My application is invalid because of 8503 condition.  No further stay:  the notification for a medical treatment visa to refuse my application is contrary to the compelling circumstances.

4. This paragraph repeats the substance of the first paragraph.  It is unarguable, just like the first paragraph, because whether or not compassionate circumstances attended the applicant’s purporting to apply for a Medical visa is irrelevant to whether the application was a valid application for a Medical visa. 

5. The third paragraph in the grounds of application is as follows: 

   My application should not be treated as invalid, as it should meet the Migration Act because of my illness, which is supported by medical report.

6. This paragraph too is unarguable. Whether or not the applicant has any illness is not relevant to whether the applicant’s application for a medical visa was a valid application. 

7. During the hearing before me I invited the applicant, who is not legally represented, to make submissions. The applicant said that he has shoulder pain and suffers from diabetes, he is unable to work, and that he had compelling circumstances. He said that for the last few years he has been staying here in Australia without his family.  He said that he will be killed if he returns to India, and that is why he has been struggling with his life here in Australia.

8. The applicant also referred to having issues with interpretation before a tribunal.  I took that to be a reference to the Refugee Review Tribunal, and I infer that the applicant had previously applied unsuccessfully for a protection visa and that he had taken that application at least up to the stage of a hearing before the Refugee Review Tribunal.  As I informed the applicant, whether or not the applicant had difficulties in a Tribunal hearing which was devoted to determining whether he had a claim for protection is not something that is relevant to the application he has filed in this court and which is the subject of these reasons for judgment. 

9. In those circumstances I am satisfied that the application before me discloses no arguable case for the relief it seeks, and I propose, therefore, to order that the application be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 December 2017